Erlich v Fleiszig and Anor (No.2)

In Erlich v Fleiszig and Anor (No.2), the plaintiff, Erlich, sought an extension of time to make an application for further provision from the estate of the deceased, Fleiszig, under the Administration and Probate Act 1958 (Vic). The dispute involved the proper interpretation of the legislation concerning costs incurred in relation to applications for further provision and extensions of time to make such applications. The case was heard by the Supreme Court of Victoria.

The central legal issues before the court were whether the principles governing costs in applications for further provision also applied to applications for extensions of time, and whether the plaintiff should bear the costs of a beneficiary as well as those of the executor. Additionally, the court had to consider whether a court notice warning that two sets of costs might not be allowed was applicable in this context. The court also evaluated two Calderbank offers that were made during the proceedings.

The court held that the principles governing costs in applications for further provision did not necessarily apply to applications for extensions of time. Regarding the plaintiff's liability for costs, the court found that Erlich should pay the costs of both the beneficiary and the executor. The court considered the court notice warning and determined it was not applicable in this situation. The two Calderbank offers were also considered, but did not influence the final decision on costs. Ultimately, the court ruled that Erlich was to bear the costs of both the beneficiary and the executor, but did not deem it necessary to award costs against costs.

The final order of the court was that Erlich would be responsible for paying the costs of both the beneficiary and the executor, but the court refrained from awarding costs against costs. This decision highlights the court's approach to the allocation of costs in applications for further provision and extensions of time, and the importance of considering all relevant factors in making such decisions.