Epov v Epov [2018] NSWSC 1819

Supreme Court New South Wales

Medium Neutral Citation: Epov v Epov [2018] NSWSC 1819 Hearing dates: On the papers Date of orders: 28 November 2018 Decision date: 28 November 2018 Jurisdiction: Equity Before: Kunc J Decision: Defendant personally to pay plaintiff's costs of proceedings on the indemnity basis assessed in the sum of $21,936.93 Catchwords: SUCCESSION — Family provision and maintenance — Costs — Proceedings to enforce order for family provision — Executor ultimately complies with order but fails to demonstrate any reason for earlier non-compliance — Executor to pay costs of proceedings personally on the indemnity basis without recourse to estate Legislation Cited: Civil Procedure Act 2005 (NSW) Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Cases Cited: Bechara v Bates [2016] NSWCA 294 Epov v Epov; Epov v Epov [2014] NSWSC 1086 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Liprini v Liprini [2008] NSWSC 423 Category: Costs Parties: Maria Epov (Plaintiff) Peter Epov (Defendant) Representation: Counsel: P W Bates (Plaintiff) Peter Epov (in person)

Solicitor: Gerard Malouf and Partners (Plaintiff) File Number(s): 2017/359031 Publication restriction: No

Judgment

Summary 1. These proceedings concern the enforcement of orders made by Hallen J arising from his Honour's judgment in Epov v Epov; Epov v Epov [2014] NSWSC 1086 (the "Principal Judgment"). Without disrespect, I shall refer to the various members of the Epov family by their given name. 2. The Principal Judgment determined claims for family provision from the estate of Konstantin by his wife, Maria, and one of his children, Gennady. The defendant in each claim was Peter, who is Konstantin's son, Maria's stepson and Gennady's brother. Peter is the executor of Konstantin's estate. 3. One of the outcomes of the Principal Judgment was that Maria was to receive a legacy from part of the proceeds of sale of a property at Lidcombe (the "Lidcombe Property"). The present proceedings were commenced by Maria because Peter refused to give effect to the Principal Judgment by paying her the legacy to which she was entitled pursuant to Hallen J's orders. 4. When these proceedings came on for hearing before me, Peter (who appeared for himself) conceded that the relevant funds should be paid to Maria's solicitor. Peter informed the Court that the reason for his delay in making the payment was his concern about Maria's capacity and how the funds would be applied. While his concerns may have been well intentioned, they provided no excuse for his failure to comply with Hallen J's orders. In the absence of any legally cognisable excuse, the Court accedes to Maria's application that Peter should personally pay Maria's costs of these proceedings on the indemnity basis assessed in the sum of $21,936.93. 5. At all times Peter appeared for himself. At the two short hearings before me Maria was represented by her solicitor, Mr D J Cossalter. Maria's written submissions on the issues determined by these reasons were prepared by Mr P W Bates of Counsel.