| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S CI 2023 00410
| ANTHONY LENNAN | Plaintiff |
| V | |
| TAT WOON CHAO and FAY LIN CHAO (who are sued in their capacity as Executors of the Estate of FAY PING CHAO Deceased) | Defendants |
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JUDGE: | Moore J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 May 2025 | |
DATE OF JUDGMENT: | 25 August 2025 | (First Revision (26 August 2025): [11], [49]) |
CASE MAY BE CITED AS: | Lennan v Chao (No 2) | |
MEDIUM NEUTRAL CITATION: | [2025] VSC 513 | |
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PROCEDURE – Costs – Plaintiff unsuccessful in family provision claim – Plaintiff seeks defendants’ costs from estate – Defendants seek plaintiff pay costs on standard basis and on indemnity basis following offer of compromise – Where plaintiff not in need and relationship with deceased of limited duration – Usual order as to costs – Plaintiff’s case not borderline – Plaintiff unreasonably failed to accept offer of compromise – Plaintiff not impecunious as a result of costs order – Plaintiff to pay defendants’ costs on standard basis up to offer of compromise and indemnity costs thereafter – Administration of Probate Act 1958 Part IV – Supreme Court (General Civil Procedure) Rules 2015 rr 26.02, 26.08(4), ord 63 – Supreme Court Act 1986 ss 24, 97(60), 97(7) – Justice Legislation Amendment (Succession and Surrogacy) Act 2014 s 6(7) – Lennan v Chao [2025] VSC 220 – Re Schlink; Keane v Corns (No 2) [2020] VSC 417 – Innes-Irons & Anor v Forrest (Costs) [2017] VSC 10 – Webb v Ryan (No 2) [2012] VSC 431 – McCusker v Rutter (2010) 7 ASTLR 137 – Haertsch v Whiteway (No 2) [2020] NSWCA 287.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Rizzi | Moores |
| For the Defendants | Mr J Smith | Nathan Yii Lawyers |
HIS HONOUR:
In this proceeding, I determined to dismiss the plaintiff’s application under Part IV of the Administration of Probate Act 1958 (the Act) for provision from the estate of his former domestic partner, Fay Ping Chao.[1] The remaining issue for determination is the liability for the successful defendants’ costs of the proceeding.
[1]See Lennan v Chao [2025] VSC 220 (the reasons). These further reasons for judgment should be read in conjunction with the reasons. Except where otherwise apparent, I have used the abbreviations defined in the reasons.
The unsuccessful plaintiff seeks that the defendants’ costs be paid from Ping’s estate. The defendants seek that the plaintiff pay their costs on a standard basis until after the making of an offer of compromise in accordance with r 26.02 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules), and on an indemnity basis thereafter.
Costs in Part IV claims: general principles
The Court has a general discretion in respect of costs which is to be exercised judicially and in accordance with Order 63 of the Rules.[2] There are no fixed rules as to the appropriate costs order to be made in particular circumstances;…
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- AGLC
- Lennan v Chao (No 2) [2025] VSC 513
- Case
- [2025] VSC 513
- Decision Date
CaseChat Overview and Summary
The court had to determine the appropriate allocation of costs in light of the plaintiff's unsuccessful family provision claim. The issues included whether the plaintiff was in need, the nature and duration of the relationship with the deceased, and whether the plaintiff's case was borderline or unreasonably rejected the offer of compromise. The court also had to consider if the plaintiff was rendered impecunious by the costs order.
The court found that the plaintiff was not in need and that the relationship with the deceased was of limited duration. The court also ruled that the plaintiff's case was not borderline and that the plaintiff had unreasonably failed to accept the offer of compromise. The plaintiff was not rendered impecunious by the costs order. Consequently, the court ordered the plaintiff to pay the defendants' costs on a standard basis up to the amount of the offer of compromise and on an indemnity basis thereafter. The court relied on relevant statutes and previous cases to reach its decision.
The final orders required the plaintiff to pay the defendants' costs on the specified basis, in accordance with the relevant legislation and rules.
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