Weisbord v Rodny (No 2) - [2019] NSWSC 739

Supreme Court

New South Wales

Medium Neutral Citation: Weisbord v Rodny (No 2) [2019] NSWSC 739
Hearing dates: 27 March 2019
Decision date: 19 June 2019
Jurisdiction: Equity
Before: Robb J
Decision:
See par [116]

Catchwords:
COSTS — Party/Party — Payable out of a fund — Deceased estate — Scale costs of obtaining a new grant of probate to be paid out of the deceased’s estate — Effect of executor’s costs already having been paid from the deceased’s estate — Plaintiffs’ costs award to be limited to recovery of costs that it was reasonable for them to have incurred

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Party seeking indulgence or dispensation of the court — Whether an interim costs order or interim distribution should be made in a case in which the orders will be appealed
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Where figures in the Calderbank offer have been redacted — Where single offer made in Calderbank offer to settle four proceedings — Whether Calderbank offer was effective and, if so, whether costs should be paid on an indemnity basis
Legislation Cited: Civil Procedure Act 2005 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Galstian v Galstaun (bht M. Chater) [2010] NSWSC 1214
Leichhardt Municipal Council v Green [2004] NSWCA 341
Nadilo v Souris (No 2) [2019] NSWSC 246
Phillips v Phillips (No 3) [2017] NSWSC 409
Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136
Weisbord v Rodny [2018] NSWSC 1866
Texts Cited: GE Dal Pont and KF Mackie, Law of Succession (2nd ed, 2017, LexisNexis Butterworths Australia)
Category: Costs
Parties:
Proceedings 2016/225246:
Jeannette Weisbord (First Plaintiff/Cross-Defendant)
Alexander Weisbord (Second Plaintiff)
Joel Weisbord (Third Plaintiff)
Laurence Rodny (Defendant/Cross-Claimant)

Proceedings 2015/324982:
Jeannette Weisbord (Plaintiff)
Laurence Rodny (Defendant)

Proceedings 2015/324966:
Joel Weisbord (Plaintiff)
Laurence Rodny (Defendant)
Proceedings 2015/324977:
Alexander Weisbord (Plaintiff)
Laurence Rodny (Defendant)
Representation:
Proceedings 2016/225246; 2015/324982; 2015/324966; 2015/324977:

Counsel:
V Culkoff (Plaintiffs)
L Ellison SC (Defendants)
Solicitors:
Kramer & Kramer (Plaintiffs)
Norbert Lipton & Co (Defendants)

File Number(s): 2016/225246; 2015/324982; 2015/324966; 2015/324977

Judgment

Introduction

The principal judgment in these proceedings was published on 6 December 2018: Weisbord v Rodny [2018] NSWSC 1866.
For convenience, I will use the same defined terms and abbreviations in these reasons as I used in the principal judgment.
The effect of the judgment was to allow the plaintiffs' claim in the probate proceedings, which had the effect that orders would be made that the grant of probate to the defendant of the will of the late Rose Rodny made on 19 December 1997 would be revoked, and that probate of the document described in the judgment as…

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 Weisbord v Rodny (No 2)

Details

AGLC: Weisbord v Rodny (No 2) [2019] NSWSC 739
Case: [2019] NSWSC 739
Decision Date: 19 June 2019

CaseChat Overview and Summary

In Weisbord v Rodny (No 2), the dispute centred on the allocation of costs following the death of a party involved in the proceedings. The court was required to determine whether certain costs incurred by the plaintiffs should be paid from the deceased's estate. The Federal Circuit Court of Australia was tasked with resolving these issues.

The court had to consider the implications of the general rule that costs follow the event, particularly in light of the deceased's estate being subject to probate. The court also needed to examine whether an exception applied, given that an interim costs order or distribution was being sought in a case where the orders were to be appealed. Furthermore, the court was required to assess the effectiveness of a Calderbank offer, which proposed a settlement of four separate proceedings, and whether costs should be assessed on an indemnity basis due to redacted figures within the offer.

The court found that the plaintiffs' costs should be limited to those reasonably incurred. The court held that since the executor's costs had already been paid from the deceased's estate, the plaintiffs were entitled to recover only the costs that were reasonable to have been incurred. In relation to the interim costs order, the court concluded that such an order should not be made when the orders are to be appealed. The court also determined that the Calderbank offer, despite the redacted figures, was effective, and thus costs should be assessed on an indemnity basis. This was based on the principles that the offer was genuine and the costs incurred by the plaintiffs were reasonable in the circumstances.

The court ordered that the plaintiffs' costs be limited to those that were reasonable, and that no interim costs order or distribution be made in this case. Additionally, the court ruled that costs should be assessed on an indemnity basis, in accordance with the principles established regarding Calderbank offers.

Orders