(b) Makes no order as to the costs of either of the Plaintiffs, noting that there is a conditional costs agreement made with his, and her, solicitors, so that neither will have any obligation to pay any costs and disbursements of the proceedings.
(c) Orders that the first Defendant’s costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased.
(d) Makes no order as to the costs of the second Defendant.
(e) Notes that to the extent that there is insufficient in the estate to pay the first Defendant’s costs and disbursements, the Defendants will resolve, between themselves, how the balance of any unpaid costs and disbursements should be borne.
(f) Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18.
Catchwords:
SUCCESSION – FAMILY PROVISION – Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) by two adult children of the deceased – The first Defendant, the executor of the Will of the deceased to whom Probate granted and also a child of the deceased – Actual estate consisting of small amount of cash all of which will be expended in first Defendant’s costs of the proceedings - Jointly held property transmitted to second Defendant, as the surviving joint tenant, on the deceased’s death – Order sought designating deceased’s interest in jointly held property as notional estate - Whether adequate and proper provision not made in Will of the deceased for each of the Plaintiffs – Nature and quantum of provision, if any, that ought to be made for each of the Plaintiffs - Whether order designating property as notional estate should be made.
PRACTICE AND PROCEDURE – Joinder of necessary party – Late application to join holder of property sought to be designated as notional estate as the second Defendant in the proceedings.
COSTS – PRACTICE AND PROCEDURE – Conditional costs agreement – No uplift factor – Whether legal representative of each party has obligation to include the fact of the conditional costs agreement and its terms in any affidavit of costs –Practice Note SC Eq 7
[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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AGLC
Oxley v Oxley [2018] NSWSC 91
Case
[2018] NSWSC 91
Decision Date
CaseChat Overview and Summary
The case of Oxley v Oxley involves a dispute over the estate of a deceased individual. The plaintiffs, two adult children of the deceased, sought a family provision order under Part 3.2 of the Succession Act 2006 (NSW) against the defendant, the executor of the deceased's will. The actual estate of the deceased consisted of a small amount of cash, which would be expended in the executor's costs of the proceedings. The jointly held property, which was to be transmitted to the second defendant, was the subject of the dispute, as the plaintiffs sought an order designating the deceased's interest in the property as the notional estate. The legal issues in the case were whether adequate and proper provision was made in the will for each of the plaintiffs and the nature and quantum of the provision, if any, that ought to be made for each of the plaintiffs. Additionally, the court considered whether an order designating the property as the notional estate should be made.
The court found that the executor's costs would be expended on the actual estate, leaving no assets for distribution under the will. The plaintiffs argued that the deceased had not made adequate and proper provision for them and sought to designate the jointly held property as the notional estate. The court considered the legal principles and statutory provisions relevant to the making of family provision orders and the designation of property as the notional estate. The court also addressed the issue of the late application to join the holder of the property as the second defendant in the proceedings. The court held that the deceased had made adequate and proper provision for the plaintiffs and that there was no need to designate the jointly held property as the notional estate.
The court further considered the issue of costs and whether there was an obligation on legal representatives to include the fact of the conditional costs agreement and its terms in any affidavit of costs. The court found that there was no such obligation and that the Practice Note SC Eq 7 did not impose such a requirement. The court made orders dismissing the plaintiffs' claims and awarding costs to the executor, subject to the terms of the conditional costs agreement.
The court's decision in Oxley v Oxley provides guidance on the legal principles and statutory provisions relevant to family provision orders and the designation of property as the notional estate. The court's consideration of the late application to join the holder of the property as the second defendant in the proceedings highlights the importance of following procedural rules and timelines in litigation. The court's finding that there was no obligation on legal representatives to include the terms of a conditional costs agreement in an affidavit of costs may have implications for future litigation and the management of costs in family law proceedings.