Brown & Anor v Grosfeld [2011] NSWSC 1429

Supreme Court New South Wales

Medium Neutral Citation: Brown & Anor v Grosfeld [2011] NSWSC 1429 Hearing dates: 24 August 2011 Decision date: 28 November 2011 Jurisdiction: Equity Division Before: White J Decision: Refer to para [38] of judgment. Catchwords: PRACTICE AND PROCEDURE - costs - family provision - whether plaintiffs' costs should be assessed on the indemnity basis - whether plaintiffs' costs should be capped - offer of compromise not more favourable than judgment obtained by plaintiff - executor did not act unreasonably in not accepting Calderbank offer - not possible to make just assessment of what would be a proper amount at which to cap plaintiffs' costs - plaintiffs' entitled to costs on ordinary basis as agreed or assessed - executor entitled to costs on indemnity basis to be paid out of estate - order that executor's costs be paid out of estate on indemnity basis does not affect right of beneficiaries to contend on passing of accounts that expense for legal costs should not be recoverable from estate because not properly incurred Legislation Cited: Family Provision Act 1982 Legal Profession Act 2004 Civil Procedure Act 2005 Probate and Administration Act 1898 Cases Cited: Moore v Moore [2004] NSWSC 587 Tobin v Ezekiel [2011] NSWSC 571 Jvancich v Kennedy (No 2) [2004] NSWCA 397 Re Sherborne Estate (No. 2); Vanvalen v Neaves [2005] NSWSC 1003; (2005) 65 NSWLR 268 Baychek v Baychek [2010] NSWSC 987 Brown v Grosfeld; Fitzpatrick v Grosfeld [2011] NSWSC 796 Skalkos v T & S Recoveries Pty Ltd [2004] NSWCA 281; (2004) 65 NSWLR 151 April Fine Paper Macau Commercial Offshore Ltd v Moore Business Systems Australia Ltd [2009] NSWSC 867; (2009) 75 NSWLR 619 Vasiljev v Public Trustee [1974] 2 NSWLR 497 Re S J Hall deceased (1958) 59 SR (NSW) 219 In the Estate of Lampard (Supreme Court of New South Wales, Hodgson J, 25 July 1995, unreported; BC9505168) Shave v Shave [2011] NSWSC 1356 Category: Costs Parties: Jennifer Brown (1st Plaintiff) Ian Chick (2nd Plaintiff) Johannes Theodorus Grosfeld (Defendant) Representation: M Meek SC (Plaintiffs) A Lakeman (Defendant) Carroll & O'Dea (Plaintiffs) Angela J Anthony & Associates (Defendant) File Number(s): 2009/288951