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Sarant v Sarant (No 2)

Sarant v Sarant (No 2)

Case [2020] NSWSC 1897 22 December 2020

Costs

Family Provision Claim

Discretionary Costs Order

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Sarant v Sarant (No 2) [2020] NSWSC 1897
Hearing dates: 15 December 2020
Date of orders: 22 December 2020
Decision date: 22 December 2020
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:
(1) Makes no order as to the Plaintiff/Cross-Defendant’s costs to the intent that he will bear his own costs of the proceedings.
(2) Orders the Plaintiff/Cross-Defendant to pay $40,000 on account of the Defendants/Cross-Claimants’ costs; otherwise, makes no order as to their costs to the intent that they are to bear their own costs of the proceedings.
(3) Orders that the amount for costs be paid at the same time as the lump sum is paid; or, if it is not paid, out of George’s share of the proceeds of sale of the Bronte property when it is sold.

Catchwords:
COSTS – SUCCESSION – Family provision claim by spouse of extremely long marriage – Where Plaintiff largely successful in the claim – Whether the Plaintiff should pay the Defendants’ costs as he received, subject to conditions, the deceased’s interest in the only substantial asset of the estate, being the deceased’s one-half interest in the matrimonial home – No other asset out of which order for costs can be made although funds to be paid to Defendants – If funds not paid, property to be sold - Where Defendants defended the claim in their own self-interest – Defendants unsuccessful in defending proceedings and in prosecuting Cross-Claim –Application of general rule in family provision matters and whether discretion to be exercised – Whether basis for an order that the Defendants should pay, all or some, of their own costs of the proceedings

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Family Law Act 1975 (Cth)
Succession Act 2006 (NSW), ss 59, 99
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Blendell v Byrne; The Estate of Noeline Joan Blendell (No 2) [2019] NSWSC 798
Gray v Richards (No 2) (2014) 315 ALR 1; [2014] HCA 47
Haertsch v Whiteway (No 2) [2020] NSWCA 287
Luxmore Pty Ltd v Hydedale Pty Ltd (2008) 20 VR 481 at 484 [12]; [2008] VSCA 212
Pang v Fong (No 2) [2014] NSWSC 1924
Sarant v Sarant [2020] NSWSC 1686
Skrimshire v The Melbourne Benevolent Asylum (1894) 20 VLR 13
Smith v Moore (No 2) [2020] NSWSC 1640

Category: Costs
Parties: George Sarant (Plaintiff/Cross-Defendant)
Maria-Lyn Sarant (First Defendant/First Cross-Claimant)
Melissa Sarant (Second Defendant/Second Cross-Claimant)
Representation:
Counsel:
R D Wilson SC (Plaintiff/Cross-Defendant)
J E F Brown (Defendants/Cross-Claimants)
Solicitors:
Coleman Greig Lawyers (Plaintiff/Cross-Defendant)
Blanchfield Nicholls Family & Private Advisory (Defendants/Cross-Claimants)

File Number(s): 2019/00285479

Judgment

Introduction

On 26 November 2020, I published my reasons for determination of an application by the Plaintiff (George Sarant) for an order, pursuant to s 59 of the Succession Act 2006 (NSW) (the Act), for provision out of the estate of his wife, Elizabeth Randie Sarant (the deceased). The reasons for judgment bear the medium neutral citation, Sarant v Sarant [2020]…

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 Sarant v Sarant (No 2)

Details

AGLC: Sarant v Sarant (No 2) [2020] NSWSC 1897
Case: [2020] NSWSC 1897
Decision Date: 22 December 2020

CaseChat Overview and Summary

The matter before the court was a family provision claim brought by the Plaintiff, Sarant, against the Defendants, Sarant, following the death of the former. The Plaintiff sought a provision out of the deceased’s estate, which was primarily constituted by the matrimonial home. The Plaintiff, who had been married to the deceased for an extended period, was largely successful in their claim, and the court recognised the importance of the family provision legislation in protecting family members from financial destitution. The court was required to decide whether the Plaintiff should bear the Defendants’ costs despite largely prevailing, given that the Plaintiff had received the deceased’s interest in the matrimonial home, subject to certain conditions.

The court examined the principles and discretion available in family provision claims, particularly focusing on the allocation of costs. The court noted that the general rule is for the unsuccessful party to bear the costs of the successful party, but this rule may be subject to discretion in family provision matters. The court recognised that the Defendants had defended the proceedings in their own self-interest, and their defence was ultimately unsuccessful. Additionally, the Defendants had prosecuted a cross-claim that also failed. The court determined that the Defendants' actions in pursuing their own interests justified an order for costs against them, even though the Plaintiff had largely succeeded in their claim.

The court concluded that the Defendants should bear their own costs of the proceedings, given the Plaintiff's success in the main claim and the Defendants' unsuccessful defence and cross-claim. The court also noted that no other asset was available to satisfy a costs order against the Plaintiff, and any shortfall in the funds due to the Defendants would result in the sale of the matrimonial home. The court exercised its discretion to order that the Defendants pay all of their own costs of the proceedings, recognising the importance of the family provision legislation in protecting the interests of family members.

The final orders of the court were that the Defendants pay the Plaintiff’s costs of the family provision claim and that the Defendants pay their own costs of the proceedings. The court also made an order that if the funds due to the Defendants were not paid, the matrimonial home would be sold to satisfy the outstanding amount.

Orders