Indyk v Wiernik - [2006] NSWSC 868

CITATION: Indyk v Wiernik [2006] NSWSC 868

HEARING DATE(S): 16/08/06

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 08/16/2006

DECISION: Subject to existing orders as to costs, the plaintiff to pay 15% of defendant's costs. As to the remaining 85% of the defendant's costs, and any difference between her solicitor and client costs and party and party costs, the defendant is entitled to be indemnified against the estate assets as to 60%. Plaintiff is to pay his own costs.

CATCHWORDS: PROCEDURE [566]- Costs- Matter settled except for costs- Demands made by the plaintiff beneficiary pitched too high- Unreasonable delay by the defendant executrix in administering the estate- Plaintiff to pay 15% of defendant's costs- Defendant seeks to be indemnified against the estate- Defending personal interest and reputation as well as defending the estate- 60% of defendant's costs to be indemnified.

LEGISLATION CITED: SCR Part 68 r 2

CASES CITED: Adam v Mullen (Holland J, 15.12.1976)
Mavrideros v Mack (1998) 45 NSWLR 80
Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622
Romano v Romano [2004] NSWSC 775

PARTIES: Searle Myron Indyk (P)
Carolyn Wiernik (D)

FILE NUMBER(S): SC 2449/05

COUNSEL: L Ellison SC (P)
S J Burchett (D)

SOLICITORS: TressCox Lawyers (P)
McCabe Terrill (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 16 August 2006

2449/05 – INDYK v WIERNIK

JUDGMENT

1 HIS HONOUR: This is a most unsatisfactory case between a brother and a sister over their mother’s estate. It involves the estate of a person who died as long ago as 10 April 2003, having made a will on 24 April 1997, probate of which was granted to the defendant on 25 March 2004. The will was simple enough. It left the estate to the three children equally, save that, in the case of one child, he was to get a life estate only, and thereafter the other two were to have the remainder.

2 The assets of the estate consisted of a fairly expensive house at Darling Point, plus a debt owed by a related company, and a whole series of chattels, including paintings made by the deceased herself, of no real commercial value but of some sentimental value, and paintings done by other people and jewellery, which did have some value.

3 The proceedings commenced on 27 October 2004, that is, about eighteen months after the deceased’s death, and after about six months of probate.

4 The proceedings came before various judicial officers at Master and Registrar level. Eventually a statement of claim was filed in May 2006, and the proceedings set down for hearing. However, they were mediated before the Honourable Mr Brian Cohen QC in July 2006, and basically settled as a result of that mediation.

5 I say “basically settled” because it was agreed that, subject to the defendant submitting to the plaintiff verified accounts of her administration…

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.

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Details

AGLC: Indyk v Wiernik [2006] NSWSC 868
Case: [2006] NSWSC 868
Decision Date: 16/08/2006

CaseChat Overview and Summary

The case of Indyk v Wiernik involved a dispute over costs in the context of an estate administration. The plaintiff, Indyk, was the beneficiary of an estate, while the defendant, Wiernik, was the executrix. The primary issue in the case was the determination of costs following the settlement of the matter, with the plaintiff's demands for costs being considered excessive and the defendant's delay in administering the estate being noted. The court was required to assess the reasonableness of the costs sought by the plaintiff and to determine whether the defendant should be indemnified against the estate for a portion of those costs.

The court examined the nature of the plaintiff's demands and found them to be pitched too high, reflecting a lack of proportionality. Additionally, the court highlighted the unreasonable delay by the defendant in administering the estate, which contributed to the costs incurred. Given these factors, the court determined that the plaintiff should pay 15% of the defendant's costs. Furthermore, the court considered the defendant's personal interest and reputation in defending both the estate and herself, leading to the decision that 60% of the defendant's costs should be indemnified against the estate.

The court's decision underscored the importance of proportionality and reasonableness in cost claims, particularly in the context of estate administration. By setting a specific percentage of costs to be borne by the plaintiff and allowing for a significant portion of the defendant's costs to be indemnified against the estate, the court aimed to balance the equities between the parties involved. This outcome reflects the court's approach to ensuring that cost demands are fair and justified, while also protecting the interests of the executrix in defending against claims. The final orders of the court were that the plaintiff would pay 15% of the defendant's costs, and 60% of those costs would be indemnified against the estate.

Orders