Weisbord v Rodny (No 5) - [2023] NSWSC 1581

Supreme Court

New South Wales

Medium Neutral Citation: Weisbord v Rodny (No 5) [2023] NSWSC 1581
Hearing dates: 7 February 2023
Date of orders: 15 December 2023
Decision date: 15 December 2023
Jurisdiction: Equity
Before: Robb J
Decision:
See [113] – [116]

Catchwords:
SUCCESSION — family provision — claims by adult child and adult grandchildren for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — final orders disposing of remaining issues
COSTS — party/party — payable out of a fund — deceased estate — defendant executor’s costs payable on indemnity basis
COSTS — offer of compromise where plaintiff unsuccessful — indemnity costs — no element of compromise sufficient to justify indemnity costs
JUDGMENTS AND ORDERS — entry — effect of — consideration of the Court’s power to vary costs orders once entered

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(4)
Probate and Administration Act 1898 (NSW), s 84A(3)
Succession Act 2006 (NSW), ss 8, 59
Uniform Civil Procedure Rules 2005 (NSW), Pt 42, Div 3, rr 20.26(2), 36.11(2), 36.16(3)(a), 36.16(3A), 36.16(3B)

Cases Cited:
Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin (No 2) [2021] NSWCA 98
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2005] NSWSC 481
Roads and Traffic Authority of New South Wales v Palmer (No 2) [2005] NSWCA 140
Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22
Weisbord v Rodny [2018] NSWSC 1866
Weisbord v Rodny (No 2) [2019] NSWSC 739
Weisbord v Rodny (No 3) [2021] NSWSC 458
Weisbord v Rodny (No 4) [2022] NSWSC 1726

Texts Cited:
GE Dal Pont, Law of Costs (5th ed, 2021, LexisNexis)

Category: Consequential orders
Parties:
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)
Proceedings 2016/225246:
Jeannette Weisbord (First Plaintiff)
Alexander Weisbord (Second Plaintiff)
Joel Weisbord (Third Plaintiff)
Laurence Rodny (Defendant)
Representation:
Counsel:
V Culkoff (Plaintiffs)
L Ellison SC (Defendant)
Solicitors:
Kramer & Kramer (Plaintiffs)
Norbert Lipton & Co (Defendant)

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

JUDGMENT

These reasons for judgment and the four previous judgments that I have published concern the testamentary affairs of the late Mrs Rose Rodny.
The Court must now make final orders to dispose of the remaining issues in the three out of four proceedings that have not yet been completed.

Previous judgments

It is necessary to explain relevant aspects of the previous judgments, as well as a judgment of the Court of Appeal, in order to understand the remaining issues that are the subject of this judgment. I will follow the Court’s present practice and will call the properties that are relevant to these reasons “No 77” and “No 102”.

My first judgment

I delivered the first judgment on 6 December 2018: Weisbord v Rodny [2018] NSWSC 1866 (Weisbord No 1). The judgment determined the plaintiffs’ claims in four…

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.

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Details

Case: [2023] NSWSC 1581
Decision Date: 15 December 2023

CaseChat Overview and Summary

The Weisbord v Rodny (No 5) case involved claims from an adult child and adult grandchildren seeking provision from the deceased's estate under the Succession Act 2006 (NSW), Chapter 3. The dispute was heard in the Supreme Court of New South Wales. The claims were for family provision, with the court required to determine the validity and extent of the claims under the Succession Act. The court also needed to decide on the allocation of costs, particularly regarding the payment of the defendant executor's costs on an indemnity basis.

The court's reasoning involved a careful examination of the statutory requirements for family provision claims under the Succession Act. The court assessed the claims made by the adult child and adult grandchildren, considering the deceased's intention and the relevant provisions of the Act. Additionally, the court considered the implications of an offer of compromise where the plaintiff was unsuccessful, and whether there was sufficient merit in the offer to justify indemnity costs. The court concluded that the claims did not meet the threshold for indemnity costs and ordered that the defendant executor's costs be payable on a standard basis.

In its final orders, the court made several determinations. It found that the adult child and adult grandchildren's claims for family provision were not valid under the Succession Act. The court also ruled that the defendant executor's costs were to be paid on a standard basis, not on an indemnity basis, and that the costs should be paid out of the deceased estate. Furthermore, the court addressed the effect of its power to vary costs orders once entered, reaffirming the principle that such variations should be exercised with caution and only in exceptional circumstances.

Orders