1 The Plaintiff is to pay 40 per cent of the Defendants’ costs, calculated on the indemnity basis, of the proceedings.
2 The Plaintiff is not entitled to receive distribution of her share of the residuary estate of the deceased from the Defendants, as executors of the estate, until such time as she pays into the estate the costs that have been ordered to be paid by her.
3 In the event that the Plaintiff does not pay the costs ordered to be paid by her, the Defendants are entitled to appropriate the amount of those costs, as assessed or agreed, from the share of the residuary estate to which the Plaintiff is entitled and to then distribute the balance of that share to her.
4 Makes no order as to the Plaintiff’s costs, to the intent that she is to bear her own costs of the proceedings.
5 Orders that the balance of the Defendants’ costs of the proceedings, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate pf the deceased.
Catchwords:
COSTS - Probate and family provision proceedings brought in one proceedings – Where Plaintiff unsuccessful in entirety of her claim – Where Defendants made two Offers of Compromise, each of which was not accepted by the Plaintiff, and the Defendants obtained orders on the claims, no less favourable than the terms of the offer – Where Defendants seek application of r 42.15A of the Uniform Civil Procedure Rules 2005 (NSW) - Whether the Court should exercise its discretion to “otherwise order”
SUCCESSION - Where Defendants seek an order that that they may deduct from the Plaintiff’s share of the residuary estate, the costs ordered to be paid by her – Where Plaintiff is unable to otherwise repay the estate
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Chisak v Presot (No 2) [2021] NSWSC 754
Case
[2021] NSWSC 754
Decision Date
CaseChat Overview and Summary
The case of Chisak v Presot (No 2) involved the Plaintiff, who brought probate and family provision proceedings against the Defendants. The Plaintiff sought to challenge the validity of the will of her deceased father and to claim a greater share of the estate. The case was heard in the Supreme Court of New South Wales, where the Plaintiff was ultimately unsuccessful in her claims. The Defendants had made two offers of compromise, which the Plaintiff rejected. The Defendants subsequently obtained orders that were not less favourable than the offers.
The legal issues before the Court were whether the Defendants' costs should be deducted from the Plaintiff's share of the residuary estate and whether the Court should exercise its discretion to "otherwise order" under r 42.15A of the Uniform Civil Procedure Rules 2005 (NSW). The Court was required to consider the circumstances of the case, including the Plaintiff's inability to repay the costs to the estate. The Court noted that the Defendants had made two offers of compromise, which the Plaintiff had rejected, and that the outcome of the proceedings was not less favourable than those offers.
The Court held that it was appropriate to exercise its discretion to "otherwise order" under r 42.15A of the Uniform Civil Procedure Rules 2005 (NSW). The Court found that the Plaintiff's inability to repay the costs to the estate was a relevant consideration and that it was just and equitable to make an order that the Defendants may deduct the costs from the Plaintiff's share of the residuary estate. The Court also noted that the Plaintiff's rejection of the Defendants' offers of compromise was a relevant factor in exercising its discretion. The Court made an order that the Defendants may deduct the costs ordered to be paid by the Plaintiff from her share of the residuary estate.