Epov v Epov - [2018] NSWSC 1819

Supreme Court

New South Wales

Medium Neutral Citation: Epov v Epov [2018] NSWSC 1819
Hearing dates: On the papers
Date of orders: 28 November 2018
Decision date: 28 November 2018
Jurisdiction: Equity
Before: Kunc J
Decision:
Defendant personally to pay plaintiff’s costs of proceedings on the indemnity basis assessed in the sum of $21,936.93

Catchwords: SUCCESSION — Family provision and maintenance — Costs — Proceedings to enforce order for family provision — Executor ultimately complies with order but fails to demonstrate any reason for earlier non-compliance — Executor to pay costs of proceedings personally on the indemnity basis without recourse to estate
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW)
Cases Cited: Bechara v Bates [2016] NSWCA 294
Epov v Epov; Epov v Epov [2014] NSWSC 1086
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Liprini v Liprini [2008] NSWSC 423
Category: Costs
Parties: Maria Epov (Plaintiff)
Peter Epov (Defendant)
Representation:
Counsel:
P W Bates (Plaintiff)
Peter Epov (in person)
Solicitor:
Gerard Malouf and Partners (Plaintiff)

File Number(s): 2017/359031
Publication restriction: No

Judgment

Summary

These proceedings concern the enforcement of orders made by Hallen J arising from his Honour’s judgment in Epov v Epov; Epov v Epov [2014] NSWSC 1086 (the “Principal Judgment”). Without disrespect, I shall refer to the various members of the Epov family by their given name.
The Principal Judgment determined claims for family provision from the estate of Konstantin by his wife, Maria, and one of his children, Gennady. The defendant in each claim was Peter, who is Konstantin’s son, Maria’s stepson and Gennady’s brother. Peter is the executor of Konstantin’s estate.
One of the outcomes of the Principal Judgment was that Maria was to receive a legacy from part of the proceeds of sale of a property at Lidcombe (the “Lidcombe Property”). The present proceedings were commenced by Maria because Peter refused to give effect to the Principal Judgment by paying her the legacy to which she was entitled pursuant to Hallen J’s orders.
When these proceedings came on for hearing before me, Peter (who appeared for himself) conceded that the relevant funds should be paid to Maria’s solicitor. Peter informed the Court that the reason for his delay in making the payment was his concern about Maria’s capacity and how the funds would be applied. While his concerns may have been well intentioned, they provided no excuse for his failure to comply with Hallen J’s orders. In the absence of any legally cognisable excuse, the Court accedes to Maria’s application that Peter should personally pay Maria’s costs of these proceedings on the indemnity basis assessed in the sum of $21,936.93.
At all times Peter appeared for himself. At the two short hearings before me Maria was represented by her solicitor, Mr D J Cossalter. Maria’s written submissions on the issues determined by these reasons were prepared by Mr P W Bates of…

Grounds of appeal

[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.

Continue reading Epov v Epov

Details

AGLC: Epov v Epov [2018] NSWSC 1819
Case: [2018] NSWSC 1819
Decision Date: 28 November 2018

CaseChat Overview and Summary

In the case of Epov v Epov, the parties involved were the executor of a deceased estate and the beneficiary, who sought family provision and maintenance from the estate. The dispute was heard in the Supreme Court of Victoria, where the executor had previously been ordered to provide family provision and maintenance to the beneficiary but had failed to comply with the order. The beneficiary subsequently initiated proceedings to enforce the order, and the executor eventually complied but did not provide any justification for the delay.

The primary legal issue before the court was whether the executor should be held personally liable for the costs of the proceedings to enforce the order, given that the executor had ultimately complied with the original order. The court had to consider the appropriate circumstances under which an executor might be held personally liable for such costs and whether any exceptional circumstances existed to excuse the executor's earlier non-compliance.

The court found that the executor had a duty to comply with court orders and that failure to do so warranted personal liability for the costs incurred by the beneficiary in enforcing the order. The executor's eventual compliance with the order did not absolve the executor of personal liability for costs if no reasonable justification for the delay was provided. The court held that the executor should pay the costs of the proceedings personally on the indemnity basis without recourse to the estate, as there was no evidence of exceptional circumstances to excuse the delay. The court's decision emphasised the importance of executors adhering to court orders promptly and the consequences of failing to do so.

Orders