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[2026] NSWSC 936
Supreme Court of NSW
2026-08-03
Hammerschlag CJ in Eq
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Jurasz v Cesna (Principal Claim) [2026] NSWSC 936
Hearing dates: 1 June 2026, 3 August 2026
Date of orders: 3 August 2026
Decision date: 03 August 2026
Jurisdiction: Equity – Probate and Family Provision List – Family Provision
Before: Hammerschlag CJ in Eq
Decision: (1) Pursuant to s 58(2) of the Succession Act 2006 (NSW) (the Act), the time for the Plaintiff to make an application for a family provision order be extended to 15 February 2024.
(2) Pursuant to s 59 of the Act, the Plaintiff receive provision from the estate of the late Christine Deanna Jurasz (the Estate) in the amount of $213,000, which is to be paid to, and only to, the Plaintiff.
(3) Pursuant to s 99 of the Act, the Second Defendant’s costs of:
(a) the administration of the Estate;
(b) the family provision proceedings; and
(c) the Second Defendant’s motion filed 22 October 2025,
calculated on the indemnity basis, insofar as such amounts have not already been paid to the Second Defendant, be paid out of the Estate.
Catchwords: SUCCESSION — family provision — claim by stepdaughter as an alleged member of household and dependent of her deceased stepmother for provision from the Estate under the Succession Act 2006 (NSW), Ch 3 — where stepmother died intestate leaving a sister entitled to inherit the whole of her Estate — non-complex facts — where realised Estate comprises cash and jewellery and sports memorabilia of modest value — no notional estate involved — where Plaintiff and her husband are employees whose financial circumstances are not complicated — where the factual background is not complex — where provision is sought principally for assistance to buy a house — where administrator appointed to administer the Estate — where value of the Estate after administrator’s costs is $534,000 — HELD — provision should be made for the Plaintiff in the amount of $160,000 to assist in buying a house
COSTS — where Plaintiff claims that her legal costs (including costs claimed by her solicitor for administering the Estate) exceed $282,000 which are sought to be paid out of the Estate but which are not supported by any costs agreements, timesheets or counsel’s fee notes — application by Plaintiff for gross lump sum costs order — HELD — that costs claimed are grossly excessive — an estate is not an underwriting fund against which excessive and disproportionate legal costs may be secured — that the amount of $53,000 should be allowed and paid to her out of the Estate — where Plaintiff has paid more than this to her lawyers — that the provision plus costs of $213,000 is to be paid directly to the Plaintiff — observation: some of this could be used to buy a new car without impairing her ability to buy a house or be used as additional funds towards the purchase of a house
Jurasz
Cesna (Principal Claim)
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Uniform Law (NSW)
Succession Act 2006 (NSW)
Cases Cited: Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333
Birketu Pty Ltd v Atanaskovic (2025) 282 CLR 300
Jurasz v Cesna [2024] NSWSC 1315
Stone v Stone [2019] NSWSC 233
Category: Principal judgment
Parties: Katarzyna Jurasz (Plaintiff)
Eileen Cesna (First Defendant) (self-represented)
Lauren Gidley (Second Defendant)
Representation: Counsel:
P Lowson (1 June 2026), M Waters (3 August 2026) (Plaintiff)
A Green (Second Defendant)
Solicitors:
Smallwoods Lawyers (Plaintiff)
Glass Goodwin Solicitors (Second Defendant)
File Number(s): 2024/00059171
Publication restriction: Nil
Christine Deanna Jurasz (the Deceased), died intestate on 13 July 2022, aged 71, leaving an estate consisting predominantly of equity in her apartment at 9/16-20 Grandview Street, Parramatta, an entitlement to a tax refund, a 2013 Toyota RAV-4 vehicle, jewellery and sports memorabilia. The gross estate was worth $696,038.74 (the E****state), with liabilities of $56,871.
The Deceased married Boguslaw Jurasz (Bogdan) on 22 April 1988. Bogdan had emigrated to Australia from Poland. He died on 8 May 2019.
The Deceased is survived by her sister, Eileen Cesna (Cesna), the First Defendant. She is a widow and is 75 years old. She lives in Queensland. She has two adult daughters. She appears to have a variety of health issues. Her and the Deceased had been estranged for some years before the Deceased passed away. On the intestacy of the Deceased, she takes the whole of the Estate.
The Plaintiff, Katarzyna Jurasz (Jurasz), is Bogdan’s daughter from a previous marriage, ie. the Deceased’s stepdaughter. She was born on 3 June 1980 in Poland, so she is now 46 years old. In 1998, she too emigrated to Australia from Poland. She is married to Jeremy David Croft (Jeremy), a sommelier. They have two daughters, aged respectively 8 and 11 years. Jurasz’s mother lives in Poland. Jurasz studied English at Macquarie University and then obtained a Bachelor of Business and Management at the Hotel School at Southern Cross University.
Pursuant to s 59 of the Succession Act 2006 (NSW) (the Act), Jurasz seeks provision for her maintenance, education and advancement in life out of the Estate.
The Estate is represented by an administrator, a solicitor experienced in this area, who was appointed to that office by this Court on 1 October 2024 (the Administrator). She has sole conduct of the proceedings on behalf of the Estate. A grant to her of Letters of Administration was made on 31 August 2025.
I have come to the conclusion that some provision should be made for Jurasz.
For reasons which will become apparent later, a significant part of her costs are not properly allowable out of the Estate and, as to the remainder, given the modest size of the Estate, the allowable costs ought to be capped. This case clearly comes within paragraph [40] of Practice Note SC Eq 7 which says:
Orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the net distributable value of the estate (excluding costs of the proceedings) is less than $1,000,000.
The Administrator’s costs to come out of the Estate, and which it is fair to say, were exacerbated to an extent by the behaviour of Cesna, total $78,211.67 (of which $23,984.48 has been paid). Part of those costs have been recouped from Jurasz’s erstwhile counsel in circumstances described below. The material before the Court satisfies me that the Administrator’s costs are reasonable. After deducting unrecouped Administrator’s costs, the value of the Estate falls to $534,000, in round figures. If any detriment was caused to the Estate by Cesna’s behaviour, she bears it herself.
In an affidavit dated 19 June 2026, Jurasz says that her costs to the conclusion of these proceedings are $260,158.20. This eyewatering amount includes $21,800 for the period 1 June to 3 August 2026. However, as appears below, the figure actually claimed for this period is $44,165. This means that her estimate goes up by $22,365 to $282,523, that is, over half of what the Estate is worth after Administrator’s costs. Jurasz has already paid more than $50,000 out of her own pocket and evidence led in her own case is to the effect that she cannot pay any more. Given her impecuniosity, the only available inference is that it was contemplated that the Estate would be looked to, to bear any excess.
If all those costs were to come out of the Estate, it would be worth about $252,000, or about 47% of the Estate left over. If the Estate were then shared equally between the combatants, they would each get $126,000. On no footing would this be a justifiable or acceptable outcome. Had they shared the Estate from the outset, they would have received more than double this.
Yet again, the Court must deal with the situation where an Estate is modest and the Plaintiff’s legal costs are way out of proportion to the whole of the Estate, let alone any amount she could ever justify as a provision to be made for her out of it.
I emphasise once more that an estate is not an underwriting fund against which excessive and disproportionate legal costs may be secured.
57 Eligible persons
(1) The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person—
…
(e) a person—
(i) who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii) … at that particular time or at any other time, a member of the household of which the deceased person was a member…
58 When an application may be made
…
(2) An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time…
59 When family provision order may be made
(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that—
(a) the person in whose favour the order is to be made is an eligible person, and
…
(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.
(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
60 Matters to be considered by Court
(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining—
(a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and
(b) whether to make a family provision order and the nature of any such order.
(2) The following matters may be considered by the Court—
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,
(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,
(e) if the applicant is cohabiting with another person—the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.
Some of the somewhat tortuous procedural history of the case is set out below. A more detailed recounting can be read in Meek J’s judgment of 1 October 2024: Jurasz v Cesna [2024] NSWSC 1315.
When the proceedings commenced on 15 February 2024, the only defendant cited was NSW Trustee and Guardian (NSWTG). That body did not appear on the first return of the Summons on 15 March 2024.
Cesna’s position was that she wished to obtain letters of administration and she retained lawyers, who advised on 19 April 2024, that they had instructions on her behalf to apply.
Jurasz was ordered to file an Amended Summons naming Cesna as a defendant. NSWTG was removed as a defendant. Cesna was directed to file and serve affidavits by 28 June 2024.
On 22 May 2024, Jurasz filed an Amended Summons.
Directions were made for the filing of affidavits. Cesna did not comply.
On 12 August 2024, Cesna’s solicitors ceased to act, but apparently she still intended to apply for letters of administration.
However, on 27 August 2024, she said she no longer wanted to administer the Estate and sought that NSWTG be appointed.
On 3 September 2024, Jurasz filed a motion seeking Cesna’s removal as a defendant, for an order that the Administrator be added as a defendant and be granted letters of administration. The real property at Parramatta was mortgaged to a bank. The Estate defaulted on the mortgage and the bank moved to exercise its power of sale. This spawned the motion.
The application was disposed of by Meek J on 1 October 2024, after a two-day hearing. His Honour appointed the Administrator but declined to accede to the application that Cesna be removed as a defendant. She remains one: see Jurasz v Cesna [2024] NSWSC 1315.
On 28 February 2025, the Administrator brought a motion for an interim grant of administration. Jurasz supported the motion. Cesna opposed it. The application was granted by Kunc J.
On 28 August 2025, the parties attended mediation. It failed.
On 7 October 2025, Cesna filed a motion seeking an order that Jurasz and her solicitor, Mr Richard Smallwood (Smallwood), indemnify the Estate in the amount of $151,929.98 “for unnecessary losses, expenses, and penalties incurred by reason of their conduct.” The motion was supported by an affidavit by Cesna dated 27 September 2025. The gravamen of her complaint appears to have been that Smallwood failed to take any steps to protect the Estate, that Jurasz deliberately withheld information to Cesna of her sister’s death and removed property of the Deceased including her jewellery and motor car. Cesna says that she was not told about her sister’s death for well over a year and this does not seem to be disputed. But it is not presently necessary to delve into the merits of her complaints. A little more is said about the motion later.
On 22 October 2025, the Administrator filed a motion to have Cesna removed as a party from the proceedings. The matter came before Lindsay J on 9 February 2026. Cesna did not proceed with her 7 October 2025 motion. Lindsay J declined to order the removal of Cesna as a party, but made the following orders restricting Cesna’s participation in the hearing:
15. ORDER, subject to further order, that the first defendant remain as a party to these proceedings for the purpose of enabling her, at her own risks as to costs, to make submissions to the Court about disposition of the plaintiff’s family provision application, but not for the purpose of adducing evidence otherwise than through the second defendant in the ordinary course of a family provision proceeding.
16. ORDER that the first defendant not be permitted to adduce further evidence or file any motions without the leave of the Court.
On 11 February 2026, I fixed the matter for hearing before me, to commence on 1 June 2026 on an estimate of two days. I made the usual order for hearing. On that occasion, Jurasz was represented by counsel. Cesna appeared by audio-visual link. The Administrator was present in Court.
On the morning of 1 June 2026, before Court, my Associate received a phone call from someone identifying themselves as Cesna’s daughter. She said that Cesna had been taken to hospital in an ambulance. A slight delay to the commencement of the hearing was caused because Jurasz’s lawyers tried to make contact with Cesna to ascertain the position. They did not succeed in making contact. However, a little later, the same person called to inform my chambers that Cesna did not object to the case proceeding, provided that certain affidavits of hers were read.
I determined that the appropriate way forward was to permit the Administrator to read Cesna’s affidavits but not to require Cesna for cross-examination and instead to regard the weight of her evidence as affected by her non-availability for cross-examination. In the end, the other parties present did not object to this course. Her affidavit material goes to her financial circumstances. I do not consider that those financial circumstances have a role to play in this case given the findings I have made. But in any event, the only effect they could have had was to reduce Jurasz’s provision.
Jurasz was cross-examined, to some effect, by counsel for the Administrator. The Administrator was cross-examined briefly by counsel for Jurasz. By 3pm, the parties had closed their cases.
But then things did not go well for Jurasz. To put it mildly, her case had not been properly prepared. Basic evidentiary material about her financial resources and needs, and the financial circumstances of Jeremy was not adduced by affidavit or otherwise properly disclosed. Basic documents were not in the Court Book and were not available. Without being exhaustive, the shortcomings in the preparation of her case included:
Jurasz and Jeremy each own a car and jointly they own a caravan (which they used for a food truck/coffee business during the COVID-19 pandemic). Values were stated with nothing to support them;
she claimed liability (at that point) of $155,113 for legal costs, without providing any accounts or vouching;
an amount for bonuses and overtime received by Jeremy was stated with nothing to support it (and as it happens, tips he gets were not disclosed);
rent they said they were paying was stated but no lease or other agreement or any rental statement was produced. In final submissions, counsel for Jurasz sought to tender a Tenancy Receipt for two weeks rent from 26 February to 11 March 2026. She also sought to tender what appeared to be a screenshot of a bank account, which recorded what appeared to be a payment of $3,000 on 26 May 2026 to one Larry Kenneth Croft (said to be for rent). The screenshot also has a credit entry dated 26 May 2026 for $1,353.77, against an invoice number from Bentley City, describing the payment as wages. I rejected the late tender of both documents. The rent was paid to someone with the same surname as Jeremy without any elaboration of any relationship provided. They had been paying rent of $750 per week for a two-bedroom apartment. Their new address is a house in North Manly. The rental increase for a house, on its face, seemed modest. The circumstances of the lease were not disclosed, except that Jurasz gave evidence that they are on a month-to-month basis with no formal lease agreement. Whether this was an arms’ length arrangement was not disclosed;
monthly expenses were stated to include electricity and gas ($189), mobile phones ($187), car insurance ($252), sports, gym, education and music lessons ($352), and child expenses including school care, school fees, uniforms, speech therapy and general ($2,296), none of which was supported or vouched;
she claimed monthly expenses for entertainment of $1,638. But this was then said by her in evidence to be an overstatement;
no statement was made that either Jurasz or Jeremy have no other assets or resources available to them; and
Jeremy did not give evidence.
The state of Jurasz’s case (and so much was conceded by her counsel) was that, as it stood, it had to fail. [1] Such a result would have been inevitable simply by dint of her failure to make the necessary candid disclosures which are required in these cases: Stone v Stone [2019] NSWSC 233 at [8] and [166].
The correct concession was made after the Court was invited (but declined) to take judicial notice of the fact that “people don’t live on nothing” and that a monthly expenditure of something under $10,000 for a family of four “seems fairly modest”.
Jurasz then moved for an adjournment and an opportunity to put her case in order. The Administrator opposed this course. Counsel for Jurasz took full responsibility for the unacceptable state of Jurasz’s case and for the necessity to adjourn and offered personally to bear the costs thrown away by the adjournment on the indemnity basis payable forthwith. An invitation by the Court to her to take further time to consider her position was declined. Given her undertaking to pay all the costs thrown away, justice dictated that Jurasz be given the necessary opportunity to rectify matters. The hearing was adjourned to 3 August 2026. I made the following orders:
1. Vacate the hearing.
2. The plaintiff is to pay the second defendant’s costs thrown away by the vacation of the hearing on the indemnity basis payable forthwith upon assessment.
3. Record the undertaking to the Court by Ms Lowson of Counsel that upon the amount of those costs being determined, either by assessment or agreement or otherwise ordered by the Court, she will forthwith pay those costs herself.
4. Record that, but for the inadequate preparation of this case, it would have finished today including with the possibility of an ex-tempore judgment so that at least one day’s hearing and preparation for one day’s hearing which cannot be recovered will have been thrown away.
5. Stand the matter over for hearing before the Chief Judge in Equity to resume on 3 August 2026.
6. Any further affidavit evidence intended to be relied upon by the plaintiff is to be served by 19 June 2026. Evidence not served in accordance with this direction may not be relied upon without leave.
7. Any affidavit evidence in response is to be served by 3 July 2026.
8. The plaintiff is to give notice to the first defendant of these orders.
9. Liberty to apply on 3 days’ notice.
On 19 June 2026, Jurasz filed an affidavit by herself (the M****ost R****ecent A****ffidavit) and one by Jeremy.
On 2 July 2026, Cesna filed an affidavit of that date but the Administrator did not read it.
The hearing resumed on Monday, 3 August 2026 and ran to conclusion. On this occasion, Jurasz was represented by Ms M Waters of counsel and Ms A Green of counsel appeared for the Administrator once more. Ms Waters had provided written submissions in the previous week, which I read today. Ms Green provided written submissions. I was informed that both were content to rely on their written argument.
Cesna was given leave to attend by audio-visual link but without leave to appear.
The Most Recent Affidavit establishes that the caravan was bought for $25,889, and that it is currently unregistered and without insurance. No current market value is given, but Jurasz estimates (without any basis) that it is worth less than what they paid for it in 2020. Although the evidence is inadequate, I will nevertheless adopt the figure of $25,000, possibly to the advantage of Jurasz.
She provides information about the value of their personal effects and cash they have, which value I regard as not being sufficiently significant to play a role in my determination. Evidence is now adduced of their income. Their combined annual net income for 2025 was $124,672. She now discloses that they receive financial assistance from Jeremy’s uncle Larry and from Jeremy’s mother. The gifts from uncle Larry include $3,400 in February 2026, $750 in March 2026, and $3,000 in April 2026. As it happens, uncle Larry is now revealed to be Jurasz and Jeremy’s landlord. With regard to at least the last gift payment, it does seem odd that uncle Larry took rent from them while at the same time giving them cash equal to, or exceeding, the rent. This raises the spectre that the rent may be something of a contrivance. Jurasz proffered the explanation that they were doing up the house which was in a state of disrepair. This does not explain the anomaly.
Jurasz now also discloses that Jeremy gets cash tips.
Another thing is that Jeremy says in paragraph [33] of his affidavit:
I would expect to receive an inheritance from my mother. She is 84 years old and in good health.
Without elaboration, under cross-examination, Jeremy gave evidence that his mother owns a house which is unencumbered, and that he expects to share in any inheritance with his brother. He estimates that the house is worth about $2 million. He volunteered that his brother may get more of the house because he lives in Frenchs Forest, where the house is, which in itself does not appear to form the basis for his conclusion. No doubt, he was seeking to minimise the value of his own prospects. Either way, I have decided once again, to Jurasz’s advantage, not to take these prospects into account.
More importantly, however, I consider that neither Jurasz nor Jeremy were candid about the level of cash tips Jeremy receives. They are, in his words, kept “under my pillow”. Whether they are “tax free” was not the subject of discussion.
Their inadequate level of candour is concerning, but I have concluded that provision is justified anyway.
On Jurasz being an eligible person, the evidence is that:
she first visited Australia when she was 13 years old, with her sister, to visit Bogdan and travelled with him and the Deceased around Australia for three months. The trips were paid for by Bogdan and the Deceased;
she emigrated to Australia in 1998 at 17 and initially lived with the Deceased and Bogdan;
she says she regarded the Deceased as a role model and travelled with her and Bogdan multiple times through Asia and Australia between 1998 and 2003;
she moved out in 2006, initially renting a unit in Parramatta;
the Deceased gave her driving lessons and helped choose her wedding dress and helped her organise a baby shower when she was expecting;
after she moved out she remained in very close contact with the Deceased and Bogdan;
she married in 2016 and often visited the Deceased and Bogdan with their children;
they celebrated Christmases together;
the Deceased often babysat her children, including overnight;
the Deceased never missed any of her children’s birthdays and attended Kindergarten graduations, the first day of school, band performances, sports games and musical outings;
the Deceased became ill in 2021, and Jurasz stayed with her at her home most weekends. She visited her in hospital and arranged for her funeral; and
when the Deceased was in hospital, she signed a form nominating Jurasz as her next of kin.
There is some evidence, not particularly compelling, but supportive of the ultimate conclusion that there should be provision for her, that the Deceased had Jurasz in mind as inheriting. Corrosive of this is that the Deceased made no will.
Jurasz meets the requirements of s 57(1)(e) of the Act of having been dependent on the Deceased and a member of her household. I am therefore satisfied that Jurasz is an eligible person.
In her original founding affidavit, sworn on 15 February 2024, Jurasz described the provision she seeks, broadly as:
replace the family car – approximately $20,000;
private school fees (starting in two and five years’ time, respectively) between $11,000 and $23,000 a year;
buy a house; and
provide intensive speech therapy for their daughter at $8,654 per year.
In a later affidavit dated 11 March 2026 (ie. much closer to first day of hearing) she added a new claim for provision for further education to obtain a Bachelor of Human Resources, at a cost of just over $50,000, which she says would provide the prospect of a likely increase in salary. This claim is a convenient but bogus afterthought. The following exchange during her cross-examination demonstrated as much: [2]
Q. Even so, you haven't taken any steps to enrol in such a course, have you?
A. No. I think mentally it was just too much for me to deal with all of this.
Q. It wasn't a need that you identified in your first affidavit?
A. No.
Q. Was it a need that's more recently included in order to improve your claim for provision?
A. Yeah. With the prices and with everything that's going on, yes.
HIS HONOUR
Q. Just let me understand that. You've included a claim for further education because other expenses have increased and if you get an allowance for further education it'll help you pay the other expenses? Is that what you're telling me?
A. Well, no. I'm thinking with my line of work. I know that I can obviously
Q. No, let's just concentrate on my question. In relation to that, the answer you gave, as I understood it, was that you've included a claim for a further education because all kinds of other expenses have gone up. Is that right?
A. No.
Q. Which one's correct, what you told me earlier or now?
A. I just wanted to improve my education. I suppose it was just something that we've been discussing but I didn't mention it earlier.
HIS HONOUR: Carry on, Ms Green.
GREEN
Q. You didn't want to improve your education when you first provided your affidavit in 2024?
A. I, I didn't, I didn't, I didn't, I didn't think of mentioning that.
Q. But you accept it wasn't a need that you identified--
A. Yeah, that's correct.
Q. --in that first affidavit and it's only something that's appeared in your most recent affidavit?
A. (No verbal reply)
Q. At the end of that questioning Ms Green said to you, put it to you that you had included your evidence in the March affidavit about wanting to improve or wanting to gain further qualifications that you had done that for the purpose of increasing the scope of your plain in these proceedings. Do you remember that question?
A. I do.
Q. And you answered "Yes, because of the increase in prices of things", or words to that effect?
A. Yes.
Q. Why was that the answer that you gave to that question?
A. I was looking at improving my - or fed up my education before, but obviously I didn't think I was in the financial positions to, to do that. And I also care for my two children, so obviously I was making plans how I could better my family life and how I could better that by actually gaining a fulltime employment in the future at the higher, at the higher positions.
In her Most Recent Affidavit, Jurasz says nothing of her claim for future education. It is also not mentioned in her final written submissions. I take this unmeritorious claim to have been abandoned. But her preparedness to put forward a bogus claim necessitates careful scrutiny of her claim. Additionally, she claimed over $8,600 per year for special education for her daughter. In the witness box she told me that it costs $100 per week, which is less. She also gave evidence that at some point she received a redundancy payment but, unconvincingly, said she could not remember how much it was. I consider that she was prepared to improvise or “forget” if she thought it would improve her position. Final written submissions on her behalf appear to concentrate only on the house claim.
In those submissions, counsel for Jurasz sought to pray in aide a letter as evidencing testamentary intention of the Deceased in her favour, which the Deceased sent a solicitor, Mr George Edser on 7 October 1997, that is, 25 years before she died. The letter was written in the context of a dispute which arose out of the death of the Deceased’s mother on 22 May 1997. Prior to the death of their mother, she had bought a property at Eagelby in Queensland which was subsequently transferred to the Deceased and Bogdan to be held in trust. The Deceased and Bogdan as well as Cesna claimed an interest or entitlement in the property in accordance with contributions made by them to it, prior to their mother’s death. A Deed of Agreement was entered into between the Deceased and Bogdan on the one hand, and Cesna and her husband John on the other on 17 February 1998 under which the former couple agreed to settle Cesna’s claim by paying her $30,000 in full and final settlement in two instalments plus a further $2,000 to her or her husband on or before 18 March 1999. The Deed recorded that the Deceased and Bogdan could plead it in a bar to any action that Cesna and her husband may take in relation to Cesna’s claim for an interest in the property.
The letter sought to be relied on is a lengthy document. It contains the following paragraph towards the end:
If legally we can offer the $30,000 broken down in $10,000 lots we would need for you to send them a letter to this effect, together with a “Release”. I would want the “Release” that they sign to state that her and her family have no claim on mine and Bogdans estate ever. Mr. Edser I would like to make sure that upon my death they can not get any of my Estate or that of my Husbands. I really would like to legally disown her as family. I would also like the “Release” or letter to state that they are to have no contact directly with us at all as this will void the agreement. If they need to contact us it should only be through you in writing. They have to understand Mr Edser that if they ring you and start raving on to you, that they have to pay for that time. Although rest assured we will pay you, but I don’t want them to know that.
However, in a letter dated 14 January 1998, the solicitor wrote to the Deceased, saying “[w]e note your comment about signing a Statutory Declaration disowning your sister etc and out of an abundance of caution you could enter into such a declaration which may be retained with your own Will and other private papers.” There is no evidence that the Deceased signed any declaration. More importantly, she made no will. The inference is that by the time 25 years had passed, she had changed her mind.
In any event, where the intestacy is not challenged, Jurasz is entitled to no more than the provision which the Act requires to be made.
Jurasz has not established any basis for a legitimate expectation that the Deceased should have made provision for private school (as opposed to public school) education of her children. Assistance for her younger daughter’s learning difficulties can sufficiently be dealt with by Jeremy’s tip income. However, I have formed the conclusion that provision should be made to assist them to buy a house.
Jurasz works part-time. She foreshadows working full-time. This is the assumption upon which her legitimate expectations or just entitlements must be predicated.
The provision which should be made, leaving aside any costs recovery to which I refer later, is $160,000, which I have arrived at in the following way:
house price: $755,000 (I have taken the top-end estimation given by Jurasz and increased it by $5,000 to cover conveyancing and moving expenses – as first home owners, they pay no stamp duty);
they currently pay $3,000 per month for rent. If Jurasz works full-time, she will have an additional $1,123 per month to contribute to a mortgage. I will round this down to $1,100 per month which is somewhat less than the amount Jurasz herself says will be available. I have not taken into account any support from uncle Larry. I have also left out of account the prospect of Jeremy inheriting and have taken a leap of faith that their rental is not a contrivance developed for this case. They will therefore have $4,100 per month available to pay a mortgagee. At 7.74% p.a. (higher than the rate they adopted and using the calculator she used) they are eligible for a mortgage of $570,000. They therefore need to pay a deposit of $185,000 (noting that adopting the lower interest rate they selected would produce higher mortgage eligibility and thereby lower the appropriate provision);
I consider that they must sell the caravan if they want a house; and
result: $185,000 – $25,000 = $160,000.
After this provision, but before payment out of any costs out to Jurasz, the Estate is worth about $374,000.
I turn to the vexed question of costs, bearing in mind that full account has been taken of the Administrator’s costs on an indemnity basis.
In the Most Recent Affidavit, Jurasz says that she has incurred legal fees to date and will incur further legal fees to the conclusion of these proceedings, totalling $260,158 plus $22,365 (see earlier) (almost all of which she wants paid out of the Estate).
New counsel briefed for the last day of hearing moves for a lump sum costs order for all the motions in which Jurasz participated, in the sum of $50,000. [4]
Remarkably, however, neither Jurasz nor Smallwood placed before the Court, Smallwood’s fee agreements, costs disclosures (including costs estimates and costs updates) or time sheets. No attempt was made to justify the charges levied on Jurasz beyond proffering invoices. [5] They have not placed before the Court counsel’s fee agreements, costs disclosures or fee notes. I have carefully gone through what material has been provided, bringing the Court’s experience to bear with respect to costs and doing the best I can, in an endeavour to achieve a fair and just result notwithstanding these failures.
Adopting the gross lump sum costs approach warrants robustness including by giving an appropriate discount having regard to the absence of an opportunity to challenge assessment.
Jurasz’s motion of 3 September 2024 failed so far as she sought removal of Cesna as a defendant. The costs of that endeavour are not costs which the Estate (and indirectly, Cesna) should bear. Meek J reserved the costs of the application. Jurasz claims $35,773, comprising solicitor’s fees of $23,805, barrister’s fees of $11,220 and disbursements of $748. This amount can only be described as grossly excessive. The application was by simple motion supported by a six-page affidavit which did little but record previous directions made and refer to correspondence. In my view, before any discount is applied, the costs (solicitor, barrister and disbursements) for such an application could not conceivably reasonably exceed $10,000. Even that number is generous. I propose to apply a 25% discount, which results in $7,500. I would in any event, cap those costs accordingly.
She claims $7,421 (including barrister’s fees) for supporting the Administrator’s application for an interim grant of administration. The Administrator herself did not have counsel and it is fair to say, reading the transcript, that counsel for Jurasz made little or no contribution to that application. Jurasz’s support could simply have been conveyed to the Court without the necessity for incurring further legal fees. Briefing counsel was not necessary. The outcome of the application was close to a forgone conclusion. The motion was disposed of by Kunc J on 20 March 2025. The amount claimed is out of accord with reality. I raised with counsel that I would nominally allow $500 for her support. Counsel submitted that a little more might be appropriate. I will allow $750 and would anyway cap those costs accordingly.
She claims over $34,000 for the costs of Cesna’s 7 October 2025 application against her and her solicitor and for her support of the Administrator’s 22 October 2025 motion to remove Cesna as a defendant. The motion to remove Cesna failed although her participation in the case was curtailed and Jurasz really had no business supporting it. As to the other motion, Smallwood was personally interested in that motion because relief was sought against him. On the face of it, he was therefore in a position of conflict. His invoice has the heading: “Attendance in relation to Notice of Motion by First Defendant seeking Damages against Plaintiff and her Solicitor and Notice of Motion by Second Defendant to remove First Defendant as a Party”. The invoice does not distinguish between costs incurred respectively in her interests and his. So far as he spent his own time defending himself, he could not recover it anyway: Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 at [57]. Counsel for Jurasz correctly did not put otherwise. There is no suggestion that any employed solicitor did any work: Birketu Pty Ltd v Atanaskovic (2025) 282 CLR 300 at [2]. Leaving aside any question of potential conflict between them and the propriety of a practitioner charging a client for the defence of his own professional conduct, which is a matter that causes me significant concern, there is no legitimate basis for Jurasz (and consequentially, the Estate) to bear the costs of Smallwood’s defence of the motion if any, and even less, for those costs to come out of the Estate (I am unclear whether any part of the costs already paid by her have been allocated to his defence). She claims solicitor’s fees of $12,345 for supporting the Administrator’s motion to remove Cesna as a party. It is hard to see how anything vaguely like that amount could legitimately have been incurred. But in any event, it was the Administrator’s motion and, once again, Jurasz could merely have conveyed her support. I propose to allow $750 for this.
She claims solicitor’s fees of $6,791 for Cesna’s motion. She claims barrister’s fees of $18,370, not divided between the two motions.
I would allow half of the solicitor’s fees for Cesna’s motion rounded up to $3,400 and apply a 25% discount resulting in $2,550.
The barrister’s fees are not divided. I would consider that a fair fee for a barrister to appear on that kind of motion, including preparation, is not more than $5,000 to which I will not apply a discount.
The result is that there should be allowed a total of $8,300.
Smallwood claims other and additional costs of administering the Estate between 13 October 2023 and 29 August 2025 of $33,236 (the total in Jurasz’s affidavit is slightly different to $33,360 – the small discrepancy is unexplained). However, in an affidavit dated 25 May 2026 (Smallwood Affidavit), Smallwood states at para [25]: “[t]o avoid further disputation or any need to assess costs the plaintiff seeks an order that $25,000 be paid to the plaintiff out of the Estate in respect of these costs”. There has been no attempt to justify either amount, each of which is grossly excessive even if Cesna made a bit of a nuisance of herself. As to the amount for administration, justice does not dictate that a figure for these types of costs be plucked out of the air. Justification is required. These are not legal costs properly susceptible to a lump sum costs order. Smallwood was obliged to establish their necessity and reasonableness and he has not done, or even attempted to do, so. I also do not know whether anything for this has already been paid by Jurasz.
For costs of these proceedings to 22 May 2026, Jurasz claims $118,885, made up as to solicitor’s fees of $99,836, counsel’s fees to March 2026 of $14,080 and disbursements of $4,969.16.
In counsel’s final written outline, the following submission is made:
As to the costs of the family provision claim and the estate administration incurred by the plaintiff, the plaintiff proposes that in circumstances where she receives the whole of the estate of the deceased that her costs of the proceedings (other than those related to the Motions) will be borne by her.
The proceedings were incompetently prepared and at the end of the first day, and but for the adjournment, were bound to fail. I would not make a costs order in favour of the Plaintiff for any costs to that time, save for the filing fee and a modest amount for directions, appearances and gathering of evidence. I propose to allow $10,000. I consider this to be generous.
The Administrator’s costs will be borne by the Estate.
In para [27] of the Smallwood Affidavit, it is stated that Jurasz has paid $50,046 (slightly less than the figure referred to by Jurasz) which was allocated as to $26,496 for barrister’s fees and $23,166 for solicitor’s fees, with $384 remaining in trust.
Jurasz has succeeded in obtaining provision. She should have costs on the party-party basis from 1 June 2026. The figures for this given to me from the bar table are solicitor’s fees of $24,684, counsel’s fees of $17,600 (based on four days’ work) and disbursements of $1,781, totalling $44,165.
This is an extraordinary amount and is no doubt attributable in part to the fact that new counsel had, in effect, to start from scratch because of the state of the case. This uplift should not be for the account of the Estate. Also, Cesna filed a substantial affidavit which would have needed to be considered, although it was ultimately not read. Even so, in my opinion, not more than two days preparation for counsel is justified as recoverable from the Estate. I propose to allow $10,000 for the solicitor’s fees which I will discount by 25% and to allow three quarters of the amount claimed by counsel plus the disbursements (undiscounted) which yields $22,481.
I contrast this with the Administrator’s costs post the first day of hearing (including counsel) of $8,718.75.
The total costs which I consider should be allowed to Jurasz from the Estate are thus:
$7,500;
$750;
$8,300;
$10,000; and
$22,481,
total: $49,031.
I note that some of Jurasz’s costs were paid by uncle Larry and there is no suggestion that she must pay them back.
As a safety check, in cases of this type with estates of this size, a capping order is usually justified. The starting point or rule of thumb sometimes applied by some judges of the Court is that costs recoverable from the estate should not exceed 10% of it. In this case the estate is worth about $530,000. For convenience, I propose to adopt $53,000 as the amount at which the costs to come out of the Estate should be capped as it has already been paid. Capping the costs at $49,000 would leave Jurasz out of pocket which justice does not require.
The following observations about her case are apt. The Estate is not complex. No notional estate is involved. The factual background is not complex. Leaving aside any questions of lack of candour, Jurasz’s financial and other circumstances are not complex.
In my opinion, Jurasz should not have had to pay more than $53,000 for her case to be run from go to whoa. I cap those costs at that amount.
She has already paid more than she should have. In these circumstances, she should have refunded from the Estate $53,000 which, together with the principal provision of $160,000, should go directly into her hands.
Whether she wishes to use some of this to buy a new car is a matter for her. She will still have enough for a deposit on a house. If she used this towards the house, she would only need a mortgage of about $520,000 or could buy a slightly more expensive house.
It is not necessary for present purposes to intrude further into her dealings with her lawyers including with respect to the inadequate preparation of her case.
This results in my conclusion that there should be final provision for her, inclusive of the refund to her of the costs she has already paid, of $213,000.
The Court makes the following orders:
Pursuant to s 58(2) of the Succession Act 2006 (NSW) (the Act), the time for the Plaintiff to make an application for a family provision order be extended to 15 February 2024.
Pursuant to s 59 of the Act, the Plaintiff receive provision from the estate of the late Christine Deanna Jurasz (the Estate) in the amount of $213,000, which is to be paid to, and only to, the Plaintiff.
Pursuant to s 99 of the Act, the Second Defendant’s costs of:
(a) the administration of the Estate; (b) the family provision proceedings; and (c) the Second Defendant’s motion filed 22 October 2025,
calculated on the indemnity basis, insofar as such amounts have not already been paid to the Second Defendant, be paid out of the Estate.
**********
Tcpt, 1 June 2026, pp 68(44)-69(6).
Tcpt, 1 June 2026, pp 38(50)-39(40).
Tcpt, 1 June 2026, pp 49(37)-50(3).
See Civil Procedure Act 2005 (NSW) s 98(4)(c).
Legal Profession Uniform Law (NSW) s 174(1) provides that a law practice must provide clients with information disclosing the basis on which legal costs will be calculated and an estimate of the total legal costs and after there is any significant change to anything previously disclosed, provide the client with information disclosing the change.
(2025) 282 CLR 300