Herr v Fitzgibbon (No 2) [2008] NSWSC 354

New South Wales Supreme Court

CITATION : Herr v Fitzgibbon (No 2) [2008] NSWSC 354

HEARING DATE(S) : 14 April 2008 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 14 April 2008

DECISION : Interest to run on so much of legacies unpaid after 6 months. After orders made or 7 days after settlement of sale of estate property. Executor to have costs on an indemnity basis, successful applicants to have costs on a party and party basis.

CATCHWORDS : SUCCESSION - Family Provision and Maintenance - Failure by testator to make sufficient provision - Deferral of interest on unpaid legacies - Order for costs

LEGISLATION CITED : Wills, Probate and Administration Act 1898 Family Provision Act 1982

John George Herr - First Plaintiff PARTIES : Catherine Judith Gazzard - Second Plaintiff Malcolm Ian Herr - Third Plaintiff Colin Graham Fitzgibbon - Defendant

FILE NUMBER(S) : SC 3319/05

COUNSEL : Mr M Gilbert - Plaintiffs Mr P Newton - Defendant

SOLICITORS : Byrnes Lawyers - Plaintiffs Kemp Strang Solicitors - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

MONDAY 14 APRIL 2008

3319/05 JOHN GEORGE HERR & ORS v COLIN GRAHAM FITZGIBBON (NO 2) EX TEMPORE JUDGMENT 1 In the substantive proceedings I gave judgment in favour of Mrs Gazzard, Mr John Herr and Mr Malcolm Herr. In draft orders proposed in accordance with my judgment that provision be made out of the estate of the deceased for those three siblings in the amount of $40,000 for Mrs Gazzard and Mr John Herr and $20,000 for Mr Malcolm Herr, it is proposed that interest under the Wills, Probate and Administration Act 1898 should not run on any unpaid portion of those legacies for a period of 12 months after the making of the orders or for 21 days after settlement of the sale of the Mt Colah property. 2 In my view they are excessive periods of time. 3 It was submitted on behalf of the plaintiffs that an appropriate period for the deferral of interest would be four months. It was submitted on behalf of the plaintiffs that seven days after the settlement of a sale of the property was sufficient. 4 I agree with the latter submission that seven days should be sufficient consequent upon a sale of the property and I propose amending the 21 days in the draft order to seven days. 5 I think that four months may be too short a period to be certain that a sale of the property can be achieved. I propose to substitute for the twelve months in the proposed order a period of six months. 6 Orders 5 and 6 follow the usual course of providing for the plaintiffs' costs on a party and party basis and the defendant's costs on an indemnity basis. 7 It was submitted that in the circumstances of this case, the plaintiffs ought to have their costs on an indemnity basis or, alternatively, the defendant's costs should be limited to a party and party basis. 8 In my view the defendant is entitled to his costs on an indemnity basis. The principle underlying an order of that type is that an executor should not be out of pocket and should be reimbursed from the estate. 9 On the other hand, party and party costs are normally awarded to successful plaintiffs under the Family Provision Act 1982 and I see no reason for departing from that course in the instant circumstances. 10 I therefore propose to make the orders in the short minutes of order with the amendments to paragraph 4 as above indicated.