| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION No. 00427 of 2011
IN THE MATTER OF Part IV of the Administration and Probate Act 1958
and
IN THE MATTER OF the Will and Estate of Rachel Anklewicz deceased
BETWEEN
| RONALD ERLICH | Plaintiff |
| v | |
| GABOR PAUL FLEISZIG | First Defendant |
| THE ADMINISTRATOR GENERAL OF ISRAEL, ON BEHALF OF THE STATE OF ISRAEL | Second Defendant |
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JUDGE: | LANSDOWNE AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2013 | |
DATE OF JUDGMENT: | 31 May 2013 | |
CASE MAY BE CITED AS: | Erlich v Fleiszig & Anor (No.2) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 288 | |
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COSTS – failed application for extension of time to make an application for further provision – whether the approach to costs in applications for provision applies to applications for extension of time – whether the plaintiff should pay the costs of a beneficiary as well as those of the executor – Court notice warning that two sets of costs may not be allowed - consideration of two Calderbank offers – Administration and Probate Act 1958 (Vic) ss 97(6) and (7)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms U Stanisich | Robert Richter & Associates |
| For the First Defendant | Dr D Kovacs | Luis Peter Fleiszig |
| For the Second Defendant | Mr S L Tatarka | Arnold Bloch Leibler |
HER HONOUR:
Introduction
The plaintiff in these proceedings applied pursuant to s99 of the Administration and Probate Act 1958 (“the Act”) for an extension of time to make application for further provision from the estate of the late Rachel Anklewicz. In my reasons for judgment published 22 February 2013[1] I indicated I would dismiss the plaintiff’s application. These reasons concern costs applications made by the defendants following the publication of those reasons for judgment.
In short summary, the deceased was a Holocaust survivor who emigrated to Australia with her late husband after the Second World War, as did the plaintiff’s parents. The plaintiff’s natal family and the natal family of a Mrs Ruth Kayser were related to the deceased’s late husband, and were the only family members of the deceased or her husband in Australia. The deceased and her husband and the plaintiff’s parents were close friends and the plaintiff had a close relationship with the deceased as a child arising from those connections. As an adult the plaintiff provided assistance to the deceased, particularly in her later years.
By her last will the deceased left each of the plaintiff and Mrs Kayser a legacy of $20,000. She appointed the plaintiff and the first defendant, Mr Gabor Fleiszig, a solicitor, her executors. The plaintiff contended that by reason of his relationship with the deceased and his care for her, he was a person for whom she had a responsibility to make provision and the provision she did make was not adequate. He sought to make an application for further provision to the extent of one half of her estate. The estate…
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- AGLC
- Erlich v Fleiszig and Anor (No.2) [2013] VSC 288
- Case
- [2013] VSC 288
- Decision Date
CaseChat Overview and Summary
The court found that the principles governing costs in provision applications did not necessarily apply to applications for extension of time. The court held that the plaintiff was responsible for paying the costs of the beneficiary, but not those of the executor, as the executor's costs were considered to be part of the costs of the estate. The court also considered the two Calderbank offers made by the parties, and found that neither offer was acceptable. The court emphasised the importance of considering the terms of the offers and the context in which they were made, and noted that the court had previously warned the plaintiff that two sets of costs may not be allowed. The court found that the plaintiff's failure to meet the deadline for the application for further provision was not sufficiently justified to warrant an extension of time.
The court ordered that the plaintiff pay the costs of the beneficiary, but not those of the executor, as the executor's costs were considered to be part of the costs of the estate. The court also ordered that the plaintiff pay the costs of the defendant up to a specified date, and that the defendant pay the costs of the plaintiff from that date onwards. The court noted that the plaintiff's failure to meet the deadline for the application for further provision was not sufficiently justified to warrant an extension of time, and that the plaintiff had not adequately explained the reasons for the delay. The court emphasised the importance of meeting deadlines in estate matters, and warned the plaintiff that failure to do so could result in adverse cost consequences.
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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