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Erlich v Fleiszig and Anor (No.2)

Erlich v Fleiszig and Anor (No.2)

Case [2013] VSC 288 31 May 2013

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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.
[1][2013] VSC 63

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…

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 Erlich v Fleiszig and Anor (No.2)

Details

AGLC: Erlich v Fleiszig and Anor (No.2) [2013] VSC 288
Case: [2013] VSC 288
Decision Date: 31 May 2013

CaseChat Overview and Summary

In the matter of Erlich v Fleiszig and Anor (No.2), the court was tasked with determining issues relating to costs in an estate matter. The case involved an application by the plaintiff for an extension of time to make an application for further provision under the Family Law Act 1975. The defendant, the executor of an estate, opposed the application on the basis of the plaintiff's failure to meet a previous deadline. The court had to determine whether the principles governing costs in applications for provision also applied to applications for extension of time, and whether the plaintiff was required to pay the costs of both the beneficiary and the executor. The court was also required to consider two Calderbank offers made by the parties and the implications of the Administration and Probate Act 1958 (Vic) sections 97(6) and (7) in the context of the application.

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