Erem v Moussa (No 2)

Case [2025] NSWSC 401


Supreme Court


New South Wales

Medium Neutral Citation: Erem v Moussa (No 2) [2025] NSWSC 401
Hearing dates: 10 March 2025
Date of orders: 28 April 2025
Decision date: 28 April 2025
Jurisdiction:Equity – Probate and Family Provision List – Family Provision
Before: Richmond J
Decision:

See [108]

Catchwords:

COSTS — Party/Party — Payable out of a fund — Deceased estate

COSTS — Party/Party — Bases of quantification — Indemnity basis — Ordinary basis

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers

SUCCESSION — Contested probate — Costs — Offers of compromise

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Corporations Act 2001 (Cth)

Limitation Act 1969 (NSW)

Succession Act 2006 (NSW)

Superannuation Industry (Supervision) Act 1993 (Cth)

Superannuation Industry (Supervision) Regulations 1994 (Cth)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v Workers Compensation Nominal Insurer (2018) 98 NSWLR 171; [2018] NSWCA 146

Ballam v Ferro (No 2) [2022] NSWSC 1358

Bluth v Boyded Industries Pty Ltd (No 2) [2024] NSWCA 194

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107

Calderbank v Calderbank [1975] 3 All ER 333

Carrington v Wallace [2022] NSWSC 1078

Chandrasekaran v Western Sydney Local Health District (T/A Westmead Hospital) (No 2) [2024] NSWCA 21

Chant v Curcuruto (No 2) [2021] NSWSC 882

Commonwealth Bank of Australia v Gretton [2008] NSWCA 117

Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219

Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218

E Group Security Pty Ltd v Chief Commissioner of the State Revenue (No 2) [2021] NSWSC 1296

Erem v Moussa [2024] NSWSC 641

Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298

Heffernan v Innes (No 2) [2021] NSWSC 1187

Holder v Holder [1968] Ch 353

McNab v Graham (2017) 53 VR 311; [2017] VSCA 352

Meres v Meres (No 2) [2017] NSWSC 523

Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd (No 2) [2024] NSWCA 274

Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40

Sahade v Bischoff (No 2) [2016] NSWCA 45

Spellson v George (1992) 26 NSWLR 666; [1992] NSWCA 254

Tati v Stonewall Hotel Pty Ltd (No 2) [2012] NSWCA 124

van Camp v Bellahealth Pty Ltd [2024] NSWSC 7

Wheatley v Lakshmanan (No 2) [2022] NSWSC 851

Category:Costs
Parties: Ali Erem (Plaintiff/Cross-defendant)
Marcel Aziz Moussa (also known as Marcel Aziz Alnabulsi) (First Defendant/Cross-claimant)
NSW Trustee and Guardian (Second Defendant)
Representation:

Counsel:
K Morrissey / M Short (Plaintiff)
P Bates (First Defendant)

Solicitors:
Turner Freeman (Plaintiff)
City Lawyers and…

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AGLC
Erem v Moussa (No 2) [2025] NSWSC 401
Case
[2025] NSWSC 401
Decision Date

CaseChat Overview and Summary

In the case of Erem v Moussa (No 2), the matter before the court involved a dispute over costs in the context of a contested probate. The deceased, Mrs Erem, left an estate which was the subject of a will contest brought by her son, the plaintiff, against her husband, the defendant. The case was eventually settled, but the question of costs remained unresolved, particularly whether the defendant's costs should be payable out of the deceased's estate. The court was required to determine the basis upon which the costs should be quantified and whether there were any exceptions to the general rule that costs follow the event.

The court examined whether the costs should be calculated on an indemnity or ordinary basis. The plaintiff argued for an indemnity basis, which would allow the defendant to recover costs exceeding the amount that the plaintiff would have been liable to pay had the case proceeded to judgment. The defendant contended for an ordinary basis, which would limit recovery to the amount that the plaintiff would have been liable to pay. Additionally, the court considered whether there were any exceptions to the general rule that costs follow the event, specifically focusing on the defendant's offers of compromise made under Calderbank. The court had to decide if these offers could influence the costs order.

The court found that the costs should be assessed on an ordinary basis. The reasoning included that the settlement reached was not a result of any of the defendant's offers of compromise but rather through negotiations. The court held that the Calderbank offers did not provide a sufficient basis to deviate from the ordinary rule of costs. Therefore, the defendant's costs were not payable out of the deceased's estate. The court concluded that the costs should be borne by the party who made the successful settlement offer.

In conclusion, the court ordered that the defendant's costs be paid by the plaintiff on an ordinary basis. The court rejected the application for costs to be paid out of the deceased's estate and dismissed the defendant's claim for indemnity costs based on the Calderbank offers. The final orders ensured that the plaintiff bore the costs of the proceedings, limiting the defendant's recovery to the amount that the plaintiff would have been liable to pay had the case proceeded to judgment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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