Sung v Malaxos (No 2) [2015] NSWSC 290

Supreme Court New South Wales

Medium Neutral Citation: Sung v Malaxos (No 2) [2015] NSWSC 290 Hearing dates: 9 March 2015 Date of orders: 25 March 2015 Decision date: 25 March 2015 Jurisdiction: Equity Division Before: Pembroke J Decision: See paragraphs [24] and [25] Catchwords: SUCCESSION – family provision – costs – unsuccessful plaintiff COSTS – family provision – costs of unsuccessful plaintiff – appropriate order Legislation Cited: Civil Procedure Act 2005 Succession Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Bowditch v NSW Trustee and Guardian [2012] NSWSC 702 Harkness v Harkness (No 2) [2012] NSWSC 35 McDougall v Rogers (Estate of James Rogers) [2006] NSWSC 484 Re Bodman [1972] QD R 281 Singer v Berghouse [1994] HCA 40; 181 CLR 201 Category: Costs Parties: Rosetta Kai Sung - plaintiff Nick Malaxos - defendant Representation: Counsel: G A Elliott – for the plaintiff J D Beck – for the defendant Solicitors: Elias Gates & Associates – for the plaintiff Forum Law – for the defendant File Number(s): 2014/094155

Judgment 1. On 9 March 2015 I delivered judgment in these proceedings and ordered that the plaintiff's claim for a family provision order be dismissed. I concluded that her claim was without merit and that adequate provision for her proper maintenance in life had been made by the will of the testator. 2. The remaining outstanding matter relates to the costs of the proceedings. The defendant seeks an order that his costs be paid by the plaintiff on an indemnity basis while the plaintiff submits that she should have her costs out of the estate on an indemnity basis. Prior to the hearing the defendant made four offers to the plaintiff in an effort to settle the proceedings. The first offer was made on 6 June 2014. Each of the offers was well considered and reasonable. Had the plaintiff accepted any of the offers she would have been in a better financial position than she is in today. 3. For the reasons that follow I have decided that costs should follow the event and that the defendant should have his costs on an indemnity basis from 7 June 2014 in accordance with Rule 42.15A (2)(b)(i) of the Uniform Civil Procedure Rules 2005.