Hinderry v Hinderry (No 2) [2016] NSWSC 1577

Supreme Court New South Wales

Medium Neutral Citation: Hinderry v Hinderry (No 2) [2016] NSWSC 1577 Hearing dates: 31 October 2016 Date of orders: 31 October 2016 Decision date: 09 November 2016 Jurisdiction: Equity Before: Hallen J Decision: (a) Makes no order as to the Plaintiff's costs of the family provision proceeding, to the intent that he will bear his own costs.

(b) Orders that the first Defendant's costs, calculated on the indemnity basis, of the family provision proceeding, be paid out of the estate of the deceased.

(c) Orders that a lump sum costs order of $16,500, being the costs of the second and third Defendants of the family provision proceeding, be paid out of the estate of the deceased.

(d) Orders that the Plaintiff not bear, rateably, any share of the Defendants' costs of the family provision proceeding, to the intent that all of those costs will be paid by the other beneficiaries, namely Tony, as to 54.5 per cent, Joseph, as to 27.25 per cent and Mary, as to 18.25 per cent.

(e) Orders that each party's costs of the Plaintiff's notice of motion for interim provision and the appointment of a special administrator, filed on 9 October 2014, be paid as part of the costs of the Probate proceeding ordered to be paid by Lindsay J on 13 October 2014.

(f) Orders that the exhibits be returned. Catchwords: COSTS - Costs of notice of motion, and an unsuccessful claim for a family provision order - Whether to depart from the general rule that costs follow the event - Overall justice of the case Legislation Cited: Civil Procedure Act 2005 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bechara trading as Bechara and Company v Bates [2016] NSWCA 294 Bobb v Wombat Securities Pty Limited (No 2) [2013] NSWSC 863 Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 Bruce v Greentree (No 2) [2015] NSWSC 1636 Chapple v Wilcox [2014] NSWCA 392 Harkness v Harkness (No 2) [2012] NSWSC 35 Hinderry v Hinderry [2016] NSWSC 780 Kazar (Liquidator) v Kargarian; In the Matter of Frontier Architects Pty Ltd (In Liq) [2011] FCAFC 136 Matthews v Wear [2011] NSWSC 1145 McCusker v Rutter [2010] NSWCA 318 Page v Page [No 2] [2016] NSWSC 1323 Pearson & Ors (The Joint Administrators of Lean Brothers International (Europe)) v Lehman Brothers Finance SA & Ors [2010] EWHC 3044 Penfold v Predny [2016] NSWSC 472 Plassas v Person (No 2) [2016] NSWSC 1515 Smith v Smith (No 2) [2011] NSWSC 1105 Category: Costs Parties: Michael George Hinderry (Plaintiff) Tony Hinderry (first Defendant) Charlie Semaan (second Defendant) Simon Semaan (third Defendant) Representation: Counsel: Mr J Brown (Plaintiff) Mr M Meek SC (first Defendant) Mr B Levet (second and third Defendants)