Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe (No. 2) [2017] NSWSC 1362

Supreme Court New South Wales

Medium Neutral Citation: Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe (No. 2) [2017] NSWSC 1362 Hearing dates: 7 September 2017 Date of orders: 09 October 2017 Decision date: 09 October 2017 Jurisdiction: Equity Before: Slattery J Decision: An order for costs of all proceedings made in the plaintiff's favour. The plaintiff's costs ordered to be paid out of the estate on the ordinary basis and are capped in the sum of $100,000, upon the assumption that the claimed notional estate is available. Directions made to give further notice of these proceedings to other potential claimants to the notional estate. Catchwords: COSTS – estate litigation – contest for administration of deceased's estate between a claimed de facto partner of the deceased and sibling of the deceased - deceased's sibling successful – family provision proceedings heard at the same time – plaintiff fails in claim she was the de facto spouse of the deceased – plaintiff succeeds in obtaining a legacy of $75,000 from a small estate of approximately $350,000, together with claimed notional estate of $411,000 – whether the defendant administrator was successful on the dominant issue in the proceedings – whether the plaintiff should pay her own costs of the proceedings – whether the plaintiff's costs should be capped – how should the principle of proportionality be given effect with respect to the plaintiff's costs - what costs order should be made in the circumstances – what notional estate contest remains. Legislation Cited: Civil Procedure Act 2005, ss 98(4)(c), 60 Conveyancing Act 1919, s 66G Succession Act 2006, s 57(e) Supreme Court of NSW, Practice Note SC EQ 7 - Supreme Court – Family Provision Trustee Act 1925 s 59(4) Uniform Civil Procedure Rules 2005, r 42.25(1) Cases Cited: Baychek v Baychek [2010] NSWSC 987 Bostik Australia Pty Ltd v Liddiard (No. 2) NSWCA 304 Deves v Porter [2003] NSWSC 878 Forsyth v Sinclair (No 2) (2010) 28 VR 635 James v Surf Road Nominees Pty Ltd (No. 2) [2005] NSWCA 296 Kelly v Deluchi [2012] NSWSC 841 Moore v Moore [2004] NSWSC 587 National Trustees Executors & Agency Company of Australasia Limited v Barnes (1941) 64 CLR 268 Nudd v Mannix [2009] NSWCA 327 Parker v Parker [2006] NSWSC 473 Re Sherborne Estate (No 2); Vanvalen v Neaves (2005) 65 NSWLR 268 Singer v Berghouse (No 2) (1994) 181 CLR 201 Van Zonneveld v Seaton (No. 2) [2005] NSWSC 175 Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe [2017] NSWSC 818 Category: Costs Parties: Plaintiff: Tracey Lee Wilson Defendant: Manfred Robert Porada Representation: Counsel: