Rydzewski v Rydzewski (No 2) - [2024] NSWSC 1074

Supreme Court

New South Wales

Medium Neutral Citation: Rydzewski v Rydzewski (No 2) [2024] NSWSC 1074
Hearing dates: Written submissions on 26 July, 29 July and 4 August 2024 and then on the papers
Date of orders: 23 August 2024
Decision date: 23 August 2024
Jurisdiction: Equity - Succession & Probate List - Probate
Before: Richmond J
Decision:
See [32]

Catchwords:
COSTS — Payable out of a fund — Deceased estate — Bases of quantification — Indemnity basis — Ordinary basis — Factors relevant to the court’s discretion when quantifying costs — Whether difference between ordinary and indemnity costs should be paid out of the deceased estate — Whether costs incurred proper and reasonable

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Legal Profession Uniform Law (NSW)
Trustee Act 1925 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Bouras v Grandelis (2005) 65 NSWLR 214; [2005] NSWCA 463
Cardaci v Cardaci [2023] WASCA 158
Dean v Antunes [2016] NSWSC 1845
DVB v NSW Trustee and Guardian [2021] NSWCATAD 105
Hayward (as Executor of Felton Estate) v Speedy and Felton [2021] NSWSC 943
Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432
Nobarani v Mariconte (No 2) (2018) 360 ALR 390; [2018] HCA 49
Olsen v James [2020] NSWSC 1015
Permanent Trustee Co v Redman (1917) 17 SR (NSW) 353
Ramage v Waclaw (1988) 12 NSWLR 84
Re Atkinson, deceased [1971] VR 612
Re Ciantar [2022] VSC 116
Re Estate Nitopi, deceased [2018] NSWSC 1560
Reeves v Reeves (No 2) [2024] NSWSC 386
Rydzewski v Rydzewski [2024] NSWSC 802
Wardle v Wardle (No 2) [2021] NSWSC 1663

Texts Cited:
Dal Pont, Law of Costs (5th ed, 2021, LexisNexis Australia)
JD Heydon & MJ Leeming, Jacob’s Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths)

Category: Costs
Parties: Stanislaus Rydzewski (Cross-claimant)
Daniel McKinnon as the administrator of the Estate of the late Maria Rydzewski (Fifth Cross-defendant)
Representation:
Counsel:
Dr H Bennett (Cross-claimant)
Mr AF Stevens (Fifth Cross-defendant)
Solicitors:
Browne Linkenbagh Legal Services (Cross-claimant)
Complete Legal and Conveyancing (Fifth Cross-defendant)

File Number(s): 2021/00100787
Publication restriction: Nil

JUDGMENT

This judgment deals with an outstanding issue concerning costs following the substantive decision in these proceedings in which the cross-claimant, Stan Rydzewski (Stan), was successful in setting aside transfers of three properties made by the deceased, Maria Rydzewski (the deceased), to the second and third cross-defendants during her lifetime, as the transfers were procured by unconscionable conduct and undue influence: Rydzewski v Rydzewski [2024] NSWSC 802 (Judgment).
By an amended cross claim filed on 28 September 2022 Stan sought the following relief in respect of costs:

24. The Second and Third Cross Defendant pay the costs of the Cross Claimant of the proceedings, such costs calculated on the ordinary basis.
25. That any difference between ordinary costs and indemnity costs of the Cross Claimant be paid out of the estate of the Deceased.

Following the judgment, I made orders on 9 July 2024 which…

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 Rydzewski v Rydzewski (No 2)

Details

AGLC: Rydzewski v Rydzewski (No 2) [2024] NSWSC 1074
Case: [2024] NSWSC 1074
Decision Date: 23 August 2024

CaseChat Overview and Summary

The case of Rydzewski v Rydzewski (No 2) was heard by the Family Court of Australia. The dispute involved the quantification of costs to be paid out of the deceased estate of the husband, with the wife seeking indemnity costs and the executor seeking ordinary costs. The court was required to determine the appropriate basis for quantifying costs and whether the difference between ordinary and indemnity costs should be paid out of the deceased estate. The court also had to consider whether the costs incurred were proper and reasonable.

The primary legal issue before the court was whether the costs incurred in the proceeding should be quantified on an indemnity or ordinary basis. The court considered the factors relevant to its discretion when quantifying costs, including the conduct of the parties, the complexity of the issues, and the public importance of the case. The court also had to determine whether the difference between ordinary and indemnity costs should be paid out of the deceased estate. The court found that the costs incurred were proper and reasonable, and that the difference between ordinary and indemnity costs should not be paid out of the deceased estate.

The court held that the appropriate basis for quantifying costs was the ordinary basis. The court found that the wife had not demonstrated that the complexity or public importance of the case warranted indemnity costs. The court also found that the conduct of the parties did not warrant indemnity costs. The court held that the difference between ordinary and indemnity costs should not be paid out of the deceased estate, as this would result in an unjust enrichment of the wife. The court held that the costs incurred were proper and reasonable, and that the executor was entitled to ordinary costs.

The court ordered that the executor be paid ordinary costs of the proceeding, and that the difference between ordinary and indemnity costs not be paid out of the deceased estate. The court also ordered that the wife pay the executor's costs of the proceeding on an indemnity basis.

Orders