Chisak v Presot (No 2) [2021] NSWSC 754

Supreme Court New South Wales

Medium Neutral Citation: Chisak v Presot (No 2) [2021] NSWSC 754 Hearing dates: 17 June 2021 Date of orders: 30 June 2021 Decision date: 30 June 2021 Jurisdiction: Equity Before: Hallen J Decision: The Court orders that: 1 The Plaintiff is to pay 40 per cent of the Defendants' costs, calculated on the indemnity basis, of the proceedings. 2 The Plaintiff is not entitled to receive distribution of her share of the residuary estate of the deceased from the Defendants, as executors of the estate, until such time as she pays into the estate the costs that have been ordered to be paid by her. 3 In the event that the Plaintiff does not pay the costs ordered to be paid by her, the Defendants are entitled to appropriate the amount of those costs, as assessed or agreed, from the share of the residuary estate to which the Plaintiff is entitled and to then distribute the balance of that share to her. 4 Makes no order as to the Plaintiff's costs, to the intent that she is to bear her own costs of the proceedings. 5 Orders that the balance of the Defendants' costs of the proceedings, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate pf the deceased. Catchwords: COSTS - Probate and family provision proceedings brought in one proceedings – Where Plaintiff unsuccessful in entirety of her claim – Where Defendants made two Offers of Compromise, each of which was not accepted by the Plaintiff, and the Defendants obtained orders on the claims, no less favourable than the terms of the offer – Where Defendants seek application of r 42.15A of the Uniform Civil Procedure Rules 2005 (NSW) - Whether the Court should exercise its discretion to "otherwise order" SUCCESSION - Where Defendants seek an order that that they may deduct from the Plaintiff's share of the residuary estate, the costs ordered to be paid by her – Where Plaintiff is unable to otherwise repay the estate Legislation Cited: Civil Procedure Act 2005 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: AB v Curry (No 2) [2015] NSWSC 1209 Bates v Cooke (2015) 14 ASTLR 22; [2015] NSWCA 278 Bates v Cooke (No 2) [2014] NSWSC 1322 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Bowen Investments v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 Bruce v Greentree (No 2) [2015] NSWSC 1636 Calderbank v Calderbank [1976] Fam 93 Cherry v Boultbee (1839) 4 My & Cr 442 Chisak v Presot [2021] NSWSC 597 Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248 D & D Corak Investments (In Liquidation) Pty Limited (2020) 147 ACSR 99; [2020] NSWSC 1197 Eastlings Pty Ltd v Calidu Import Export Pty Ltd (No 3) [2021] NSWSC 466 Evans v Braddock (No 2) [2015] NSWSC 518 Haertsch v Whiteway (No 2) [2020] NSWCA 287 Hamod v State of New South Wales (2002) 188 ALR 659; [2002] FCAFC 97; [2002] FCA 424 Houatchanthara v Bednarczyk [1996] NSWCA 253 In re Akerman [1891] 3 Ch 212; [1891] UKLawRpCh 118 In re VGM Holdings Limited [1942] 1 Ch 235 Jeffs v Wood (1723) 2 P Wms 128 Manly Council v Bryne (No 2) [2004] NSWCA 227 Mendonca v Tonna (No 3) [2020] NSWCA 332 Middlebrook v Middlebrook (1962) 36 ALJR 216 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2) [2021] NSWCA 98 Page v Page [No 2] [2016] NSWSC 1323 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 Sassoon v Rose [2013] NSWCA 220 Smith v Whittaker [2016] VSC 287 Spiers v English [1907] P 122 Starr v Miller; Starr v Miller (No 2) [2021] NSWSC 685 Turner v Turner [1911] 1 Ch 716 Walker v Harwood [2017] NSWCA 228 YWCA Australia v Chief Commissioner of State Revenue (No 2) [2021] NSWSC 102 Category: Costs Parties: Ivy Hope Chisak (Plaintiff) Emanuela Presot (first Defendant) Adelina Presot (second Defendant) Representation: Counsel: M W Sneddon (Plaintiff) J Lucy (Defendants)