Chisak v Presot (No 2)

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.