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
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:
Proceedings 2016/225246:
Alexander Weisbord (Plaintiff)
Laurence Rodny (Defendant)
Jeannette Weisbord (First Plaintiff)
Alexander Weisbord (Second Plaintiff)
Joel Weisbord (Third Plaintiff)
Laurence Rodny (Defendant)Representation: Counsel:
Solicitors:
V Culkoff (Plaintiffs)
L Ellison SC (Defendant)
Kramer & Kramer (Plaintiffs)
Norbert Lipton & Co (Defendant)
File Number(s): 2015/324982; 2015/324966; 2015/324977; 2016/225246 Publication restriction: Nil
JUDGMENT
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These reasons for judgment and the four previous judgments that I have published concern the testamentary affairs of the late Mrs Rose Rodny.
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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
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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
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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…
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- Case
- [2023] NSWSC 1581
- Decision Date
CaseChat Overview and Summary
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.
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