Rathswohl v Court (No 2) [2021] NSWSC 505

Supreme Court New South Wales

Medium Neutral Citation: Rathswohl v Court (No 2) [2021] NSWSC 505 Hearing dates: 5 May 2021 Date of orders: 5 May 2021 Decision date: 05 May 2021 Jurisdiction: Equity Before: Rees J Decision: Final orders made for provision, costs (including indemnity costs) and interest. Catchwords: COSTS – family provision – offer of compromise – plaintiff offers to accept $499,000 – judgment for $500,000 – plaintiff's costs greater than estimate given in costs affidavit – whether plaintiff's costs should be capped to preserve net estate for the defendant – no evidence plaintiff's costs excessive – would defeat purpose of offer of compromise regime to cap fees by reason of defendant's failure to accept a reasonable offer. Legislation Cited: Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) ss 66(1)(l) and 99(1) Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.5(b), 42.14 Cases Cited: Baychek v Baychek [2010] NSWSC 987 Detheridge v Detheridge [2019] NSWSC 183 Rathswohl v Court [2021] NSWSC 356 Texts Cited: Practice Note No. SC Eq 7 Category: Procedural rulings Parties: Robert Rathswohl (Plaintiff) Yvette Court (Defendant) Representation: Counsel: Mr L Ellison SC (Plaintiff) Mr S Reuben (Defendant)

Solicitors: Barwick Boitano Lawyers (Plaintiff) City Lawyers (Defendant) File Number(s): 2019/353844

ex tempore Judgment 1. HER HONOUR: On 9 April 2021, I held that provision should be made out of the Estate of the late Josef Rathswohl for his son, the plaintiff: Rathswohl v Court [2021] NSWSC 356. I directed the parties to bring in short minutes of order reflecting my reasons within 14 days, at which time any errors or omissions should also be notified. 2. The defendant has proffered various errors or omissions, some of which are probably better articulated in a Notice of Appeal than in finalising a form of orders to reflect my reasons. Final orders must also reflect an Offer of Compromise served by the plaintiff but not accepted.