Sarant v Sarant (No 2) [2020] NSWSC 1897

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)