New South Wales Supreme Court CITATION : Cassaniti v Cassaniti [2008] NSWSC 258 HEARING DATE(S) : 14/03/08 JUDGMENT DATE : 14 March 2008 JURISDICTION : Equity JUDGMENT OF : White J EX TEMPORE JUDGMENT DATE : 14 March 2008 DECISION : See paras 56 and 58 of judgment. CATCHWORDS : SUCCESSION - Family provision and maintenance - whether testatrix made adequate provision for applicant - no competing claims - applicant in a comfortable asset position - applicant estranged from testatrix - adequate provision for applicant in will. LEGISLATION CITED : Family Provision Act 1982 (NSW) Conveyancing Act 1919 (NSW) CATEGORY : Principal judgment Singer v Berghouse (1994) 181 CLR 201 CASES CITED : Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Golosky v Golosky (New South Wales Court of Appeal, Kirby P, 5 October 1993, unreported) Orazio Cassaniti PARTIES : v Vincenzo Cassaniti & 3 Ors FILE NUMBER(S) : SC 4509/06 Plaintiff: J Darvall COUNSEL : 1st & 2nd Defendants: R D Marshall 3rd & 4th Defendants: N/A Plaintiff: Anthony Scarcella, Lawyer SOLICITORS : 1st Defendant: N/A 2nd Defendant: Patey & Murphy Solicitors IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION FPA RUNNING LIST WHITE J Friday, 14 March 2008 4509/06 Orazio Cassaniti v Vincenzo Cassaniti & 3 Ors JUDGMENT 1 HIS HONOUR: There are two applications before the Court. The first is an application under s 7 of the Family Provision Act 1982 (NSW) for an order that provision be made out of the estate or notional estate of the late Maria Cassaniti. She died on 11 March 2005. The second application, which is not the subject of any contest, is for the appointment of trustees for the sale of land in Amy Street, Campsie. That land was formerly the property of Mr Francesco Cassaniti, who died in April 1979. 2 The plaintiff is the third son of Francesco and Maria Cassaniti. The defendants are his siblings, namely, Angelo, Vincenzo, Antonio and Maria. 3 In the events which have happened, the plaintiff and his siblings are now the registered proprietors of the property at Amy Street, Campsie. Prior to her death, their mother had a life estate in the property. 4 The first and second defendants, namely Vincenzo and Antonio Cassaniti, consent to the application under s 66G of the Conveyancing Act 1919 (NSW). The other defendants have been served with the further amended summons in which orders for the appointment of trustees for sale were sought. They have not appeared on the hearing, although they had notice of it. 5 There is nothing in the evidence adduced on this application to suggest there could be any answer to the claim for the appointment of trustees for sale in respect of that property. In due course I will make those orders. 6 The Campsie property is estimated to have a value of about $1,000,000 or $1,100,000. It consists of a block of flats. It is reasonable to expect that after the sale of the property, the plaintiff will receive his share of the net proceeds of sale in an amount of about $190,000 or perhaps more. 7 Maria Cassaniti made her will on 23 January 1998. Apart from a gift of jewellery to her daughter, she left a legacy of $5,000 to the plaintiff. The remainder of her estate was left on a trust for sale to be distributed between her four children other than the plaintiff. 8 The estate has been realised and has been distributed subject to the withholding of certain moneys, as I will shortly explain. 9 The five children, being the remaindermen entitled to their father's estate in equal shares, obtained a transfer of the Campsie property on the payment of amounts payable to the Perpetual Trustee Company Ltd ("Perpetual") which was the executor of Francesco Cassaniti's will. 10 The amount paid to Perpetual was $60,392.74. That sum was paid from the moneys available on the realisation of the assets in Maria Cassaniti's estate. If the amounts payable to Perpetual were divided equally between the children, the amount payable by each of them would have been a little over $12,000. The first and second defendants say that having paid the sum of $60,392.74 from the estate, the plaintiff has received the benefit of about $7,000 more than he is entitled to from the estate of his mother. $616,068.16 has been distributed to the four residuary beneficiaries. It follows that the distributable value of the estate was about $676,000. 11 After Maria Cassaniti's death the five children reached a consensus for the division of the assets of her estate equally, notwithstanding the terms of the will. 12 On 19 August 2005, Mason Lawyers, who acted on the instructions of the executors, prepared a draft deed called a Deed of Family Arrangement which provided for the balance of the estate, excluding the jewellery, to be divided equally between all five children. 13 Mason Lawyers forwarded to the plaintiff for his approval six copies of the draft Deed of Family Arrangement. For reasons which appear to have no basis in logic, the plaintiff refused to sign. One of his reasons for not signing was because the deed had not been signed by his siblings. Another was because, he says, his brother Angelo had told him that the estate would be distributed equally, and there was no need to spend moneys on legal fees. 14 However, the reasons for not signing the agreement are of no particular relevance. It is not contended that a binding agreement was reached for the division of the estate assets. 15 In my view, the fact that an informal consensus had been reached, which subsequently broke down is not relevant to the question of whether the provision made for the plaintiff in the deceased's will was inadequate for his proper maintenance and advancement in life. 16 It was submitted for the plaintiff that the fact that the executors and the other beneficiaries were at one point prepared to agree on an equal division of the estate was an admission that the provision made for the plaintiff in the will was not adequate for his proper maintenance and advancement in life. I do not accept that that is so. The fact that the children were at one point willing to make a family arrangement for equal division of the estate is more readily explained as an endeavour at that time to achieve a family reconciliation. As will appear later in these reasons, the plaintiff had been estranged from his mother and, it appears, from at least some of his siblings. 17 The highest the evidence could go to suggesting that the proposed arrangement was in recognition of the plaintiff's need is that one of the children, the eldest son, Angelo, said that it would be unfair for the plaintiff to be left with the provision provided to him by the will. I do not consider that to be any recognition of need, as distinct from an expression by Angelo that, in his view, it would be an unfair division of the estate. 18 Where, as in this case, the applicant for provision under the Act is an eligible person, the Court may, pursuant to s 7 of the Act, but subject to s 9, order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the Court's opinion, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the applicant. 19 Section 9(2) and (3) provides: " 9 Provisions affecting Court's powers under secs 7 and 8 ... (2) The Court shall not make an order under section 7 or 8 in favour of an eligible person out of the estate or notional estate of a deceased person unless it is satisfied that: (a) the provision (if any) made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate, or (b) in the case of an order under section 8: (i) if no provision was made in favour of the eligible person by the deceased person, the provision made in favour of the eligible person under this Act out of the estate or notional estate, or both, of the deceased person, or (ii) the provision made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate as well as the provision made in favour of the eligible person under this Act out of the estate or notional estate, or both, of the deceased person, is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person. (3) In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration: (a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to: (i) the acquisition, conservation or improvement of property of the deceased person, or (ii) the welfare of the deceased person, including a contribution as a homemaker, (b) the character and conduct of the eligible person before and after the death of the deceased person, (c) circumstances existing before and after the death of the deceased person, and (d) any other matter which it considers relevant in the circumstances." 20 Sections 7 and 9 lay down a two stage process, as Mason CJ, Deane and McHugh JJ said in Singer v Berghouse (1994) 181 CLR 201 at 209 to 210: " The first question is, was the provision (if any) made for the applicant 'inadequate for [his or her] proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc. were explained in Bosch v Perpetual Trustee Co [1938] AC 476 . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant." 21 In a case such as the present where, as will be seen, the applicant for provision under the Act, or his family from whom he can expect to derive benefit in the future, has substantial net assets, it is important to bear in mind that: " All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court. " ( Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 per Dixon CJ.) 22 As Kirby P said in Golosky v Golosky (New South Wales Court of Appeal, Kirby P, 5 October 1993, unreported) the principles to be applied include (at 16): " (a) Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. (b) The purpose of the jurisdiction is not the correction of the hurt feelings or sense of wrong of the competing claimants upon the estate of the testator. The Court is obliged simply to respond to the application of the eligible person who was a member of the testator's household and to consider whether, as claimed, the provision made by the will is inadequate for that person's proper maintenance and advancement in life. " (Citation of authority omitted.) 23 The financial position of the plaintiff and his wife is explained in affidavits sworn by them on 24 January 2007. In an affidavit sworn by the plaintiff on 10 March 2008, he updated the information provided earlier as to his family's financial position in respect of liabilities which they owed and in respect of his wife's inheritance of a property from her father's estate. 24 He also updated the position so far as concern his earnings. He is employed by Australia Post as a postman. His wife, Mrs Jenny Cassaniti, is employed as a secretary at a high school. As at 24 January 2007, she was earning about $632 net per week. There is no evidence as to whether that sum has changed and, if so, by what amount. The plaintiff is currently earning about $748 net per week, including overtime. They also are in receipt of some dividends and interest and rental income. I return to that in a moment. However, it is first appropriate to examine their assets and liabilities. 25 As at 24 January 2007, the plaintiff, in his own right, owned shares valued at $3,000, an old motor vehicle which he valued at $1,000, and had superannuation then of $77,084. That of course is not presently available to him. He also was entitled to a one-fifth share of his father's estate being, relevantly, the Campsie property, which he valued at $1,000,000. 26 Mrs Jenny Cassaniti, in her own right, owned a motor vehicle which she valued at $14,000 and shares which she valued at $3,300. She had superannuation of $24,218, which I assume is not presently available to her. She also had a one-quarter share in a property at Ascot Road, Bowral, held, I infer, with members of her family, which she said was then valued at about $500,000; resulting in a quarter share of $125,000. That property consists of a block of four flats. She has also inherited what the plaintiff says is a one-quarter share of a property at Bodalla Road, Lake Munmorah. According to the plaintiff, that property is valued at $280,000 making her share about $70,000. Curiously, her description of income in respect to that property would suggest a one-third rather than a one-quarter share of entitlement to rent, but that apparent discrepancy is of no great moment. 27 In addition to these assets, the plaintiff and his wife own a substantial amount of property jointly. They own a house in Great North Road, Five Dock, to which the plaintiff attributed a value of $1,000,000. They purchased that property in about 1989. Owing to structural faults in it, they demolished the existing house in 2004 and have rebuilt a large new house. There is a mortgage over that property. As at August 2006, the mortgage was in an amount of $360,000. There is presently $326,377 owed under the mortgage. The cost of the building work was in excess of $500,000. Hence, they have funded the difference between the current mortgage and the sum of $500,000 from either their own resources, or resources which have been made available to them by others by way of gift. 28 They also own jointly an investment unit in Concord Road, North Strathfield, which the plaintiff values at $310,000. They have a one-quarter share with members of Ms Cassaniti's family of an investment property in Clarke Street, Bowral. The plaintiff estimates the value of that property to be $220,000, and their one-quarter share to be $55,000. 29 Thus, there are four investment properties in which they own, or in which they have an interest, namely, the property in Concord Road, North Strathfield, the property in Clarke Street, Bowral, the property in Ascot Road, Bowral, and the Lake Munmorah property. 30 They also have a share portfolio. According to the plaintiff's affidavit of 24 January 2007, as at 13 November 2006 it had a gross value of about $59,000. There is no evidence as to any change to that portfolio or its value. They also had an account with the Colonial First State Managed Fund which had a balance as at 30 September 2006 of $2,049. Again, there is no information as to its current balance. They had an account with an entity called DB RREEF with a balance as at 29 August 2006 of $1,365, an account with Westpac with the balance as at November 2006 of about $11,000, and account with ING Direct with a balance as at November 2006 of about $1,600. There is no updating information in relation to the balances of any of those accounts. 31 They also had an interest in what were called working account balances with the National Australia Bank for the Bodalla Road, Lake Munmorah property and the Clarke Street, Bowral, property. Their shares of those balances as at November 2006 were said to be $10,900 and $560 respectively. Their personal possessions were valued at $32,000. 32 Thus, so far as the evidence discloses, their assets at various times from November 2006, January 2007, and in the case of the Lake Munmorah property at March 2008, have been valued by them at a little over $1,800,000, not including the plaintiff's one-fifth share of the Campsie property. 33 Their liabilities as at 10 March 2008 comprise a mortgage debt of $326,377, a debt owed to the builder for building work at the Five Dock property of $19,000 and credit card debts totalling $8,400. This is a total of just under $384,000. In other words, so far as their asset position is concerned, they are in comfortable position. 34 If one excludes the matrimonial home at Five Dock and the mortgage over it, they have other assets to a net value of about $746,000. So far as the evidence discloses, this includes liquid assets such as shares and cash of over $80,000. 35 Pursuant to the orders which I will make for the appointment of a trustee for sale in relation to the Campsie property, the plaintiff can expect to receive an amount of probably about $190,000 to $200,000 on the sale of that property. 36 The claim that they had financial needs was based on a comparison between their expenses and their income. At the moment, on the figures disclosed, their income and expenses are approximately in equilibrium. They depose to having expenses totalling $1,628 per week. There was no cross-examination in relation to that claim and I accept that estimate. It is not easy to calculate their weekly income because some of that income consists of matters such as dividends and rent which is not paid weekly. Moreover, they say that rent derived from investment properties which are held with members of Mrs Cassaniti's family are not moneys which are available to them. There is a family agreement that the funds are to be held for family emergencies and not to be distributed. Quite what would constitute a family emergency is not clear. 37 However, based on the rents from the North Strathfield property, their respective wages, dividends from shares and returns from the accounts with the Colonial First State Bank and DB RREEF, they have weekly income of about $1,590. The expenses include as a major component the mortgage repayments which are now $625 per week. On their current income they have been able, with the mortgage repayments, to reduce the mortgage debt by some $34,000 in the last eighteen months. They have also reduced a debt owed to Mrs Cassaniti's family by $4,000. 38 I should add that in the figures of their liabilities, which I referred to earlier, I omitted to mention a loan from Mrs Cassaniti's family which has been reduced now to $30,000. That debt should be added back to the figures I referred to earlier in these reasons of their net assets. It does not make a material difference to their position. 39 The pressing financial need is said to be that Mrs Cassaniti suffers from various adverse medical conditions and her doctors have recommended that she undergo surgery in the form of a cervical spine fusion to relieve pain and discomfort. She says that she has delayed taking that treatment because she cannot afford to be off work for three or four months recovering from surgery. In his last affidavit, the plaintiff says that he estimates the cost of that surgery to be $15,000. Although, he has not made detailed inquiries as to such costs as a need, his estimate is the best evidence there is as to the cost of that surgery. 40 Assuming that Mrs Cassaniti is earning $632 net per week (and that is the only figure available, although it is quite possible that her income has increased slightly since January 2007), then the income foregone for a period of, say, seventeen weeks would be about $10,750. In other words, the best estimate that one could make of the extent of the plaintiff's financial needs arising from proposed surgery is that the surgery could cost the family about $26,000 for both the costs of surgery and for four months' lost income. 41 Other claimed needs which are sought to be met by an order of provision out of the estate are the costs of landscaping and fencing to complete the building work on the new home estimated to be about $20,000 (although, I understand, no quotes have been obtained); the cost of purchasing and fitting venetian blinds and curtains - about $12,400; the balance of the contract price due on the building contract - $19,000; the replacement of furniture which Mrs Cassaniti estimated would cost about $12,000; the purchase of a replacement car for the 1991 model currently being used by the plaintiff for which it is submitted provision of $20,000 would be appropriate; the repayment of the debt owed to Mr Cassaniti's family of $30,000; the discharge of credit card liabilities of $8,400; the provision of funds for the family to go away on holiday; and moneys to reduce or pay off the mortgage on the house. If all of those claimed needs were met the plaintiff and his family would be placed in a very advantageous position indeed. 42 It is to be borne in mind that, in the reasonably near future, the plaintiff can expect to receive about $190,000 which will go a very large way to meeting the claimed needs. As I have said, so far as the evidence discloses the plaintiff and his wife also have liquid assets in the form of shares or account balances of some $80,000. While these moneys would not be sufficient to meet all the claimed needs and discharge the mortgage, they are sufficient to meet many of the items claimed and substantially to reduce the mortgage. The credit card liabilities, so far as the evidence discloses, could be discharged from the credit balances in the accounts now. 43 If there were a need in the future to discharge the mortgage entirely, the present liquid assets together with the sale of the investment unit in Concord Road, North Strathfield, would be sufficient for that purpose. The plaintiff and his wife say they regard the investment unit as a nest egg which they would like to leave for their children. Whilst that is laudable, it nonetheless must be taken into account as an asset of the plaintiff and an asset available to meet his needs. 44 In my view, particularly when regard is had to the inheritance which the plaintiff should receive in the not too distant future from the sale of the Campsie property, the plaintiff is not a person in financial need which would warrant the making of an order of provision out of the estate. 45 The first-stage process in determining whether the provision made under the will is inadequate for the plaintiff's proper maintenance and advancement in life requires regard to be had not only to the plaintiff's financial position. What is a proper level of maintenance and a proper provision for advancement in life depends on other matters such as the size and nature of the estate; the totality of the relationship between the plaintiff and his mother; and the relationship between the deceased and others, namely the other children, who have legitimate claims on her bounty (see Singer v Berghouse at 210). 46 Those other matters do not advance the plaintiff's position. The plaintiff's relationship with his mother was unhappy to say the least. It is not necessary, and I doubt that it would be possible, to determine who bore the greater share of fault for the discord between them. Nor do I propose, in these reasons, to describe the history of that discord in any detail, as to do so would be unnecessary to understand these reasons and might cause needless upset. 47 It is sufficient to say that relations between the plaintiff and his mother had deteriorated to such an extent that she refused to attend his wedding in 1982 and, according to the plaintiff, forbad his brothers and sisters from attending. There was a potentially violent incident between them in late 1981. Offensive words were used. Later, when the plaintiff's son was born in 1985, he telephoned his mother to tell her of the birth. She expressed no interest in meeting the plaintiff. After that telephone conversation in May 1985 they did not speak again. As the plaintiff has said, he had irregular contact with his brothers. 48 After the death of her husband, the deceased was prone to mood swings and episodes of manic depression or bipolar disorder. She was subsequently treated with medication for that condition and, according to the defendants' evidence, when she was on medication she was not prone to aggressive behaviour. At some time, when is unclear, the plaintiff was advised of that treatment. However, no further contact occurred. I do not regard that as disentitling conduct on behalf of the plaintiff. I do not think it possible to determine precisely who was at fault. Nonetheless, the fact is that whoever bore primary responsibility for the breakdown of their relationship, the plaintiff had no dealings with his mother for twenty years before her death. 49 That was not true of his sister and brothers. It appears that his sister fell out with her mother but they reconciled. The other brothers, to various degrees, maintained contact with their mother. The deceased's will of 1998 recognises them as proper objects of her testamentary bounty. 50 I do not consider that the evidence establishes that any of the plaintiff's siblings has financial needs which should be put on the scales against the plaintiff's claim. The only evidence as to the financial position of any of the siblings was given by Mr Vincenzo Cassaniti. It is sufficient to say that the evidence of his financial position is sufficiently complex that I could form no clear view that he is a person in financial need, such that his financial needs should be put in the scales against the plaintiff's claim. 51 Nonetheless, there is nothing in the relationship between the plaintiff and the testatrix which enhances the plaintiff's claim to provision from the estate. It does not appear to me that he had made any significant contribution in terms of s 9(3)(a). 52 Whilst I do not regard the friction between him and his mother as such that would amount to disentitling conduct if he otherwise had a claim which ought to be recognised, I do not consider that his conduct towards the deceased advances his claim. 53 Having regard to what I consider to be the plaintiff's lack of financial need and the moneys which can be expected to be forthcoming to him from the asset formerly in his father's estate, and having regard also to the lack of contact between the plaintiff and the deceased for twenty years before her death, I do not consider that the legacy of $5,000 left by her will, small as it is, was inadequate for his proper maintenance and advancement in life. Accordingly, I will order that his claim for provision under the Act be dismissed. 54 The only remaining question is who should be appointed to trustee for sale for the Campsie property. The plaintiff proposes that Messrs Rowe and Einberg of Coleman & Greig Solicitors be appointed as the trustees for sale. The defendants propose that Messrs Young and Elkerton, liquidators of Pitcher Partners be appointed as trustees for sale. All of the persons nominated are certified as being fit and proper persons to be appointed and of exemplary character and integrity. The fees of Messrs Young and Elkerton would be charged at higher rates if the work were done by them personally and not delegated than would the fees which would be charged by Messrs Einberg and Rowe if the work were done by them personally. If tasks are to be delegated, it is impossible to calculate which charges would be higher overall because one cannot know to whom tasks would be delegated or what those persons would charge. 55 In my view, the task of selling the Campsie property is a task for which the solicitors should be well qualified. I think it is a task which at least would equally fall within the expertise of a solicitor as it would the expertise of a charted accountant and official liquidator. I propose to make orders for the appointment of the trustees nominated by the plaintiff. [Counsel addressed on form of orders.] 56 I make the following orders: 1. Order that the claims for relief in paragraphs 1 and 1A of the further amended summons be dismissed. 2. Order that Clas Einberg and Matthew John Rowe, both of Level 9, 100 George Street, Parramatta, be appointed as trustees for the sale of the land situated at 50 Amy Street, Campsie, New South Wales, being the land contained in certificate of title folio identifier 1/516759 ("the property"). 3. Order that the property be vested in such trustees subject to any encumbrances affecting the entirety of the land but free from encumbrances (if any) affecting any undivided share or shares therein to be held by the said trustees on statutory trust for sale under Div 6 of Pt 4 of the Conveyancing Act 1919 (NSW). 4. Direct that any of the parties be at liberty to purchase the property, whether at auction or by private treaty. 5. Direct that any sale made by the trustees to any of the parties may be made without the requirement for the payment of a deposit and upon such terms as to the payment of the balance of the purchase price as to the trustees appears appropriate, including a setting off or accounting for the purchase money or any part thereof instead of paying the same. 6. Order that the trustees distribute the proceeds of any sale of the property as follows: (i) in payment of the trustee's reasonable remuneration; (ii) in payment of any outstanding rates, charges or taxes owing to any public authority in respect of the property; (iii) in payment of the costs of sale of the property, including: (a) the commission of any real estate agent engaged by the trustees for the sale; (b) the costs and disbursements of any solicitor retained by the trustees for the sale; and (c) any other costs properly incurred by the trustees in relation to the sale. (iv) to the plaintiff for his costs in obtaining these orders; (v) to the plaintiff and the defendant in equal shares; and (vi) after deducting the sum of $7,078 from the share to which the plaintiff would otherwise be entitled and adding that equally to the shares of the defendants. 7. I also order that the plaintiff pay the defendants' costs of the claims under the Family Provision Act 1982 (NSW). 8. Exhibits may be returned after 28 days. [Counsel addressed on costs.] 57 On 13 December 2007, an order was made referring the matter for mediation before a registrar on 11 February 2008. The mediation did not proceed because the defendants did not attend. In the absence of explanation that would appear to be in defiance of the Court's order. No explanation is forthcoming, save that one of the defendants was interstate. 58 I direct that the defendants' costs which the plaintiff is ordered to pay not include any costs incurred by the defendants in connection with the mediation, and that there be set-off against the costs payable by the plaintiff the costs incurred by the plaintiff in connection with the mediation assessed on the indemnity basis. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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