Bracher v Jones (No 2) [2022] NSWSC 134

Supreme Court New South Wales

Medium Neutral Citation: Bracher v Jones (No 2) [2022] NSWSC 134 Hearing dates: 15 September 2021 Date of orders: 18 February 2022 Decision date: 18 February 2022 Jurisdiction: Equity Before: Robb J Decision: 1 The Court's further orders in Proceedings No 2016/306898 are: (1) Grant leave to the administrator (Administrator) appointed by order 1 in the Order signed by Robb J on 15 September 2021 (Order) to provide to the Court and to the parties a report (Report) in accordance with [27] of these reasons for judgment identifying all debts and other claims that she considers may be payable to the estate by any beneficiary of the estate. (2) Grant leave to the parties to relist the proceedings by arrangement with the Associate to Robb J after the completion of the Report by the Administrator to seek directions concerning the determination of the liability of any beneficiary of the estate to pay to the Administrator any debts or other claims. (3) Note that the leave granted by order 2 may be exercised in accordance with order 7 in the Order. (4) Order the first defendant to pay personally to the plaintiff the plaintiff's costs of the proceedings on the ordinary basis up to 8 June 2018 and on the indemnity basis thereafter. 2 The Court's further orders in Proceedings No 2016/139606 are: (1) the proceedings are dismissed. (2) there be no order as to costs, with the intent that each party shall pay their own costs. Catchwords: SUCCESSION — Family provision — Application for leave to commence family provision application out of time and application for further family provision dismissed in circumstances where the testator had divided her estate with approximate equality between her two children both of whom were of relatively equivalent personal and financial circumstances — No point of principle COSTS — Party/Party — Bases of quantification — Indemnity basis — Where defendant executor ordered to pay the plaintiff's costs of proceedings to establish that the testator's final will was invalid for lack of testamentary capacity and having been made under the undue influence of the defendant — Where the only parties interested in the testator's estate were the plaintiff and the defendant, being the only children of the testator — Where the defendant was ordered to pay the plaintiff's costs from a particular point in time for unreasonably failing to accept a Calderbank offer made by the plaintiff Legislation Cited: Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bracher v Jones [2020] NSWSC 1024 Coast Property Realty Pty Ltd v Falconer [2016] NSWSC 214 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Leichardt Municipal Council v Green [2004] NSWCA 341 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Re the Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Category: Principal judgment Parties: Diane Kay Bracher (plaintiff) Stephen Alan Jones (first defendant) Benjamin Stephen Jones (second defendant) Representation: Counsel: L Goodchild (plaintiff)