Weisbord v Rodny

Supreme Court of NSW|2023-02-07|Before: Robb J

JUDGMENT

These reasons for judgment and the four previous judgments that I have published concern the testamentary affairs of the late Mrs Rose Rodny.
The Court must now make final orders to dispose of the remaining issues in the three out of four proceedings that have not yet been completed.

Previous judgments

It is necessary to explain relevant aspects of the previous judgments, as well as a judgment of the Court of Appeal, in order to understand the remaining issues that are the subject of this judgment. I will follow the Court's present practice and will call the properties that are relevant to these reasons "No 77" and "No 102".

My second judgment

The second judgment was published on 19 June 2019: Weisbord v Rodny (No 2) [2019] NSWSC 739 (Weisbord No 2). This judgment dealt with the costs of the proceedings.
It is necessary to examine this judgment in some detail, as the Court was required to decide a number of issues which the parties appear to wish to revisit by means of their submissions that will be determined by these reasons.
I made orders on 1 July 2019 that included the following: 1. Order that the Executor's scale costs of obtaining a Grant of Probate be paid out of the estate of the deceased ("Estate"). 2. Order that that Plaintiffs' reasonable costs of the proceedings be paid on the ordinary basis out of the Estate. 3. Order that the Defendant's reasonable costs of the proceedings be paid on the ordinary basis out of the Estate. 4. Orders 2 and 3 are stayed pending the decision of the Court of Appeal in relation to the defendant's appeal from the judgment Weisbord v Rodny [2018] NSWSC 1866 ("Appeal"). 5. Grant leave to the Defendant to make a formal application, after the decision in the Appeal, to seek an order under s 98(4) of the Civil Procedure Act 2005 (NSW) in respect of the Plaintiffs' Costs payable pursuant to Order 2 above. …
Relevantly to the making of order 2, I said in Weisbord No 2: [34] First, the parties are agreed that the starting position should be that the costs of the plaintiffs on the one hand, and Laurence on the other, should be paid out of the estate on the ordinary basis. This, in my view, is a clear case where the need for the probate proceedings has arisen because the deceased, unfortunately and probably without real fault on her part, failed to leave the evidence of her testamentary intentions in good order, which justified the parties in undertaking and defending the probate proceedings. This is a case where "the circumstances led reasonably to an investigation concerning the testator's will": see, for example, Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 (Becker) at [125]. [35] Laurence did not submit that, for the purposes of the costs order that should be made, the plaintiffs' family provision claims should be treated separately and not as part of the overall costs of the proceedings. [36] Laurence did submit that it would have been more reasonable and efficient for the plaintiffs to have lodged a caveat in respect of Laurence's probate application, so that the probate claim could have been dealt with separately and before any significant costs were incurred in the preparation of the family provision claims. Laurence noted that, in any event, the family provision claims were commenced first, and some months out of time, before the probate claim was commenced. [37] However, as follows from the costs orders for which Laurence contends, he does not ask for an order that distinguishes between the costs of the probate and family provision claims and denies the plaintiffs the costs of the latter. In fact, during oral argument, Laurence's senior counsel explicitly accepted that the effect of an order made by the Court at an earlier time that all of the proceedings be heard together was that there should be a single costs order.
I referred at [34] to a consensus that the parties had reached at the original hearing concerning the appropriate costs order. For completeness, I will set out part of my reasons that preceded the passages that I have extracted above. That is necessary to explain the background to some of the costs orders that Mr Rodny is now seeking. I said in respect of what I described as a change of position by Mr Rodny: [26] In par 11 of the affidavit sworn on 9 April 2019, the solicitor advised the Court that Laurence now makes the following submissions concerning the original orders proposed by the plaintiffs: (a) The orders (if any) should only be made in the probate proceedings and should deal only with costs incurred in those proceedings. … (c) Regarding proposed orders 2 and 3 (with regard to the costs of the party(ies)) Mr Rodny relies on the written submissions, especially with regard to the consequence of the (redacted) Calderbank offer and submits these matters should be dealt with following the decision of the Court of Appeal. (d) An interim costs order (and any consequent payment) should not be made. Costs should await the decision of the Court of Appeal and any order by that court. Inevitably, if the appeal succeeds, cost orders will be made which may be inconsistent with those proffered by the plaintiffs. (e) An interim distribution order should also not be made in favour of the plaintiffs, pending the decision of the Court of Appeal. Neither Joel Weisbord nor Alexander Weisbord receive any cash under either the 1997 Will or the 2008 Will. If the appeal is successful, then Jeannette Weisbord receives no cash under the 1997 Will either. [27] I was more than surprised when I realised that Laurence's solicitor's affidavit proposed that the Court would depart from the course proposed by the parties at the 27 March 2019 hearing, and approach the making of orders in a completely different way. [28] As it happens, the draft of these reasons had been completed up to the point when it became necessary for the Court to deal with order (c), as sought by the plaintiffs, before I considered Laurence's solicitor's affidavit. Consistently with order 2 set out above at par 19, that affidavit should only have dealt with the subject of the plaintiffs' claim for one or other interim order for the payment of $450,000. [29] The suggestion made by Laurence that the Court should now approach the making of orders in a manner that is inconsistent with the orders that he contended on 27 March 2019 should be made, and which were supported by submissions made orally and in writing by his senior counsel, has not been authorised by the Court. Laurence has not made any proper application for leave to change the course that he took at the hearing, and the plaintiffs have not been given an opportunity to respond. [30] While there may have been some sense in the parties deferring the whole question of costs until after such time as the Court of Appeal has determined the appeal, that was not the course taken by the parties. As matters stand, the Court has reserved its judgment following the hearing, albeit that it agreed to accept some further evidence, and gave appropriate leave to the parties for that purpose. [31] In the circumstances, the proper course for the Court to take is to determine the issues on the basis presented by the parties on 27 March 2019, though having regard to the additional evidence that the parties were given leave to tender.
What had happened was that there was no disagreement between the parties as to the appropriate costs orders to be made at the original hearing. Without leave, Mr Rodny sought to change his position after I had substantially completed the reasons that became Weisbord No 2. I rejected that approach and decided the costs of the original hearing on the basis of the consensus at that hearing.
As, in the events that have happened, Mr Rodny succeeded in his appeal on the probate claim, he may have been better off if I had allowed him to change his position on the issue of costs.
Order 2 was separately made in all four proceedings. Its effect was that, even though the plaintiffs had succeeded on the probate claim, but their family provision claims had been dismissed without the determination on the merits, the whole of the plaintiffs' costs of all proceedings was ordered to be paid out of Mrs Rodny's estate on the ordinary basis.
The passages extracted from Weisbord No 2 above make it clear that I made order 2 because of the consensus to which I have referred. As noted, senior counsel for Mr Rodny explicitly accepted that outcome. That appeared to me at the time to be a reasonable position to adopt. In a real way, both the need for the probate claim and the uncertainty that led to the plaintiffs making their family provision claims arose out of the unfortunate difficulties that had to be addressed in relation to the identification of the will that would govern the distribution of Mrs Rodny's estate. Furthermore, not only had an order been made that evidence in each proceeding be evidence in the others, but to my observation, the evidence that was tendered had overlapping relevance to a substantial degree to the issues raised by all of the proceedings. Furthermore, it would have been impracticable for the parties or the Court to separate the evidence and the parties' forensic effort as between the different proceedings, given the substantial degree of overlap.
Subject only to the effect of order 5 that has been extracted above at [11], order 2 was made without any reservation that an application could be made by Mr Rodny for an order that order 2 be vacated, in whole or in part, following the determination of any appeal, or the determination of any of the plaintiffs' family provision claims, if those claims were revived as a result of orders made by the Court of Appeal. It is reasonable to infer that the plaintiffs have conducted the subsequent proceedings on the basis that order 2 was an valid order of the Court.
The matters that I considered at [26] to [31] are significant because, if Mr Rodny had taken the view that the approach that I adopted was erroneous, he had the opportunity to challenge my reasoning on appeal, and in that event, he ought to have done so.
Moving to a new issue, the plaintiffs sought an order that their costs be paid out of Mrs Rodny's estate on the ordinary basis until 20 September 2017, and thereafter on an indemnity basis. That claim was based upon a Calderbank offer served upon Mr Rodny on 13 September 2017. This issue is significant because the plaintiffs have again sought to rely upon the same Calderbank offer in their submissions on costs that are the subject of these reasons.
For the reasons given at [38] to [67], I rejected the plaintiffs' claim for indemnity costs from 20 September 2017. A number of factors were relevant to this outcome. The plaintiffs had redacted from their Calderbank offer, as tendered on the application, the figures for the amounts that they would accept to compromise the proceedings: see [49]. The offer required Mr Rodny to accept separate compromises of the probate and family provision claims with each plaintiff, on a take it or leave it basis, for amounts that were apparently identified in the letter but not in the copy tendered in evidence: see [55]. The Court then had no basis for judging what the outcome of the family provision claims would have been: see [56]. The parties had no basis for knowing what evidence would be given by Mr Lloyd, the solicitor who acted for Mrs Rodny on her ineffective attempt to make a new will, until Mr Lloyd was called on subpoena at the original hearing: see [58]. I concluded: [67] In summary, it is premature for the plaintiffs to seek to rely upon the Calderbank offer because they have declined, for good reason, to provide an unredacted copy to the Court. However, I have concluded that the Calderbank offer is not effective for the purposes of determining the costs of the plaintiffs' successful probate claim. First, the offer dealt with the three family provision claims and the one probate claim at the one time, in a manner consistent with the plaintiffs succeeding on the family provision claims and achieving more limited success on the probate claim. That precludes the Court from finding that it was unreasonable for Laurence to reject the Calderbank offer. Secondly, and more significantly, as a matter of substance it was reasonable for Laurence to reject the offer, given his unavoidable ignorance of the evidence that Mr Lloyd would ultimately give, and his then knowledge concerning the deceased's testamentary arrangements. It was also reasonable for him to defend the 1997 will. It is possible that, if the Court ultimately has to determine the family provision claims, the plaintiffs will be entitled to rely upon the Calderbank offer if they succeed on those claims. I say nothing about that possibility in these reasons.
As appears from this paragraph of the reasons in Weisbord No 2, I acknowledged the possibility that the plaintiffs might be able to rely upon their Calderbank offer, if it became necessary for the Court to decide the family provision claims.
The last aspect of Weisbord No 2 that requires consideration is the application by Mr Rodny for a costs order in the following terms: (b) Sixty percent (60%) of the Plaintiffs' costs on the party/party basis be paid out of the estate of the deceased.
As will be seen below, by order 3 proposed by Mr Rodny in relation to Joel's and Alexander's family provision claims, Mr Rodny has renewed this claim, albeit that he has left the percentage to be inserted in the order for determination by the Court.
Mr Rodny's application for a costs order in favour of the plaintiffs that only allowed them 60% of their costs on the ordinary basis was based in part on the objective magnitude of the plaintiffs' costs to date at that time ($1,444,171.40 inclusive of GST) compared to his own costs ($706,724 inclusive of GST). He also relied upon observations that I made in Weisbord No 1 at [311] to [330] about what I considered to be the egregious waste of legal costs in the way that these proceedings were prepared on behalf of the plaintiffs. There was a substantial amount of evidence that could not conceivably have been relevant to the probate claim, and is likely only to be distantly relevant to the family provision claims: see Weisbord No 2 at [69].
After discussing the difficulties involved in properly assessing a proportionate reduction in the costs payable to the plaintiffs that would be just in the circumstances, at [76] to [85], I concluded: [86] The result is that I am not prepared at this stage to adopt the broad brush approach proposed by Laurence, even though I am satisfied that, by some proper process, an adjustment should be made to the amount of the plaintiffs' costs payable out of the deceased's estate, to ensure that the plaintiffs only recover the costs that were reasonably incurred. [87] Given the complexity of the issue, it may be necessary for Laurence, if he wishes to pursue the matter in Court, rather than as part of a costs assessment, to make a formal application under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the plaintiffs' costs be determined on the basis of a specified gross sum. That course may not be attractive to Laurence, as it would require him to undertake considerable analysis of the material relevant to these proceedings. However, that exercise may be necessary, if Laurence wishes to obtain an order from the Court limiting the plaintiffs' recovery of costs, because it should not be left to the Court to do the work without the assistance and involvement of the parties. [88] I will not now make a ruling on Laurence's application that the plaintiffs' costs be reduced by 40%. That matter will be left open. Laurence will have leave to revive it. He may well think it preferable to defer the issue until after his appeal has been determined, and, if necessary, until after the plaintiffs' family provision claims have also been determined.
The position therefore is that it remains open to Mr Rodny to seek an order that the costs payable to the plaintiffs out of the estate of Mrs Rodny be reduced by an appropriate percentage to make a fair allowance for the excessive legal costs incurred by the plaintiffs in the preparation for the original hearing.
This is the reason for order 5 made on 1 July 2019, that is set out above. However, it is to be noted that order 5 gave leave to Mr Rodny to make a formal application under s 98(4) of the Civil Procedure Act 2005 (NSW). As I understood it, Mr Rodny proposed to make an application under s 98(4)(b) for an order that the costs payable to the plaintiffs be limited to "a specified proportion of the assessed costs." Given the factual complexity of the issue, it would be expected that the formal application would be supported by affidavit evidence containing an appropriate analysis of the evidence in the proceedings that would assist the Court in determining the application.

Court of Appeal judgment

Mr Rodny successfully appealed to the Court of Appeal from my decision in the probate proceedings: Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22. The orders made on 27 February 2020 by the Court of Appeal were: 1. Appeal allowed. 2 Set aside orders 1, 2, 3, 4, 5, 6 and 8 made on 11 February 2019 and entered on 12 February 2019. 3 Order that a grant of probate in solemn form of the will of Rose Rodny dated 19 December 1997 be made to Laurence Rodny. 4 Order that the costs of the appeal of the appellant and the respondents, assessed on the ordinary basis, be paid out of the estate of Rose Rodny. 5 Direct that the parties attempt to agree on the order to be made dealing with order 7 made by the primary judge and further direct that in the absence of such agreement they exchange written submissions, in the case of each party not to exceed three pages, and provide those submissions to the associate to Meagher JA by 12 March 2020. The dispute in relation to the disposition of that order will then be dealt with on the papers.
The Court of Appeal held that the requirements of s 8 of the Succession Act were not satisfied in respect of the second typewritten draft. Consequently, the original grant of probate in respect of the 19 December 1997 will of Mrs Rodny was revived.
Order 5 sought in Mr Rodny's notice of appeal was an order that: "The respondents pay the appellant's costs of the Appeal and the trial before Robb J." Order 4 made by the Court of Appeal dealt with the parties' costs of the appeal on the basis that all of those costs were to be paid out of Mrs Rodny's estate. The Court of Appeal did not make any order to set aside or vary order 2 that I made following Weisbord No 2. The Court does not know what happened at the hearing of the appeal. All that is known is that the Court of Appeal did not disturb order 2.
Furthermore, the effect of the orders made by the Court of Appeal was to finally dispose of the probate claim. The Court is functus officio in relation to that claim. That is relevant because order 2 was made on the basis that the same order was made in each of the four proceedings on the assumption that it would be effective in each.
As will be seen, all parties propose additional costs orders that would affect the operation of order 2. I will set out the terms of the orders proposed by the parties below.

Remission of family law claims

In response to order 5 made by the Court of Appeal, an order was subsequently made that the plaintiffs' family provision claims be remitted to me for determination. That order recognised the fact that I had not dismissed those claims on their merits, so that once my decision on the probate claim was set aside on appeal, the significance of the plaintiffs' family provision claims was revived.

My third judgment

My third judgment was published on 30 April 2021: Weisbord v Rodny (No 3) [2021] NSWSC 458 (Weisbord No 3). This judgment dealt with a number of issues that needed to be determined before I decided the revived family provision proceedings. The issue that is relevant to the present judgment arose out of an application made by Mr Rodny for leave to reopen his case to tender further evidence in the family provision proceedings. The original substantive hearing had taken place on a number of days between 9 October 2017 and 12 April 2018. The hearing that led to the publication of Weisbord No 3 took place on 23 March 2021, some three years after the conclusion of the substantive hearing. I ruled that the Court should not receive the further evidence that Mr Rodny sought leave to tender in relation to the personal and financial circumstances of the plaintiffs. I did so for the following reasons: [11] It is appropriate to commence the consideration of this issue by noting that the plaintiffs' family provision applications were fully contested in the hearing up to the time that the Court reserved its initial judgment. [12] There was no consideration at the hearing about whether or not the Court should deal with the family provision applications if it found in favour of the plaintiffs on the first issue that arose under s 8 of the Succession Act. I made the decision after having reserved judgment that the balance of convenience favoured the Court not determining the family provision applications. [13] I will add that in making that decision I took for granted that if I was subsequently required to determine the family provision applications, that is an exercise that would be carried out on the basis of the evidence that was before the Court when it reserved judgment. [14] In essence, the defendant's application for case management orders that would give the parties an opportunity to serve further updating evidence was based solely on that part of s 59(2) of the Succession Act that authorises the Court to make an order for provision out of the estate of the deceased person "having regard to the facts known to the Court at the time the order is made". [15] The defendant relied upon the fact that the primary judgment was delivered on 6 December 2018 and the judgment on appeal was handed down on 27 February 2020. The defendant submitted that the first instance judgment on the plaintiffs' family provision applications will now be delivered so long after the Court first reserved judgment that the wording of s 59(2) of the Succession Act requires that the parties be given an opportunity to serve updating evidence. [16] The defendant has not made an application to reopen his case. [17] Nor has the defendant provided any evidence to the Court as to the general nature of any updating evidence that the defendant contends should be placed before the Court to enable it to make a proper judgment on the plaintiffs' family provision applications. [18] Consistently with the submissions made on behalf of the plaintiffs, I propose to reject the defendant's application, and to decide the plaintiffs' family provision applications on the basis of the evidence that was before the Court when it initially reserved judgment. [19] I consider that on the proper interpretation of s 59(2) of the Succession Act, the expression "the facts known to the Court at the time the order is made" must mean at the time that the Court reserves judgment on the hearing of the application, not the later time when the Court actually makes the order following the delivery of judgment. [20] Except in the rare cases when the Court is able to deliver an ex tempore judgment, judgment will be handed down some time after it has been reserved, and in complicated cases that may be a considerable time after the reservation of judgment. Section 59(2) of the Succession Act cannot in reality mean the time when the order is made, because that would be to adopt an interpretation of the statutory provision that would make its proper operation impossible in many cases. [21] Furthermore, the practical absurdity would arise where, between the initial reservation of judgment and the making of an order following judgment, it would be open to a party, in the same manner as the defendant seeks to do now, to apply to the Court for case management orders to enable that party to serve further updating evidence. If s 59(2) of the Succession Act required the Court to have regard to the facts known to the Court at the time the order is made, in the sense contended for by the defendant, there would be no basis for the Court to resist the application. Further, after the Court had received the updating evidence, and again reserved judgment, the same type of application could be made in the period that the judgment was reserved. [22] In my view, the true answer to the defendant's application is that, where s 59(2) of the Succession Act refers to "the facts known to the Court at the time the order is made", those facts will necessarily be the facts known at the time judgment is reserved, because the Court's procedure excludes the possibility that new facts will become known during the period judgment is reserved, in the absence of a successful application by a party to reopen their case. [23] The same considerations apply to s 59(1)(c) of the Succession Act in so far as it requires the Court to determine "at the time when the Court is considering the application" whether "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". [24] If I had taken a different course and proceeded to determine the plaintiffs' family provision applications at the same time as I determined their application for the making of an order under s 8 of the Succession Act, then there is no doubt that the family provision application would have been determined on the basis of the facts established by the evidence that was before the Court when it reserved judgment. It would be unjust for the plaintiffs' family provision applications to be made dependent upon a choice made by the Court as to when to determine those applications in the circumstances that I have explained above. As a matter of fairness, there should be only one outcome of the plaintiffs' family provision applications irrespective of when the Court makes its determination. [25] The practical arguments put by the plaintiffs in support of their contention also carry weight. The plaintiffs noted that the defendant had not suggested that any particular changes in circumstances had occurred that were so significant as to create possible injustice if the Court determined the plaintiffs' family provision applications in ignorance of knowledge of those facts. The defendant had left open the question of whether a further hearing and cross-examination of witnesses would be required following the service of the updating evidence. The plaintiffs put forward evidence at the hearing of the psychological difficulties from which they suffer, and they submitted that they should not be subjected to the doubts and anxieties, as well as the costs, that would follow if the Court made open-ended case management orders that permitted the defendant to serve evidence as to events that have occurred after the Court first reserved judgment. [26] It will therefore be appropriate for the Court to consider that its judgment is still reserved on the plaintiffs' family provision applications and to give judgment on those applications in due course on the basis of the evidence that was tendered at the hearing.
Accordingly, I took the view that in relation to the generality of the circumstances that might be relevant to the plaintiffs' family provision proceedings, the Court had reserved judgment on 12 April 2018 and, those proceedings having been remitted to the Court for determination, the Court should decide the proceedings on the evidence that was before it when judgment was reserved.

My fourth judgment

My fourth judgment was published on 16 December 2022: Weisbord v Rodny (No 4) [2022] NSWSC 1726 (Weisbord No 4). I held that Ms Weisbord's family provision claim should be dismissed. In the family provision claims by Joel Weisbord and Alexander, I found that they had established grounds for the Court to make orders for further provision in their favour out of the estate of Mrs Rodny. Weisbord No 4 was decided on the basis of the evidence tendered at the original substantive hearing, and the submissions made by the parties for the purposes of that hearing, augmented by additional submissions on a number of issues at the invitation of the Court.
My reasons for finding in favour of Joel's and Alexander's family provision claims relevantly included: [169] If the deceased had succeeded in leaving a will that contained the proposed gift to the grandchildren in the second typewritten draft, the four grandchildren would have become entitled to equal shares in a property worth $5.1 million, so that each would have received $1.275 million. I do not think that it would be appropriate for the Court to make an order for further provision in favour of Joel and Alexander that gave them the same outcome as if the deceased had succeeded in making a formally valid will that had that effect. However, in this case, I consider that only a small discount is necessary to allow for uncertainties that arise in respect of the deceased's failure to have executed a valid will embodying her apparent testamentary intentions. All other things being equal, I would have made an order in the exercise of my discretion that a lump sum legacy of $1.0 million be paid to each of Joel and Alexander out of the deceased's estate. That legacy would represent 80% of the gift that those applicants would have received under a validly executed will in the terms of the second typewritten draft will. [170] However, as I have explained above, I decided in Weisbord (No 3) that the Court should not permit Laurence to reopen the evidence to introduce new issues concerning the need of Joel and Alexander for further family provision after the Court reserved judgment at the primary hearing. Notwithstanding that position, the Court cannot ignore the consequences of the costs of the proceedings being paid out of the deceased's estate, particularly as the amount of some of those costs is not known to the Court. Further, the Court has no evidence of changes in values of the estate's properties since judgment was reserved on 12 April 2018. The amount of the legacy that should be paid to Joel and Alexander may decrease to the extent that they should bear a share of the burden of the costs to be paid out of the estate. The amount of the legacy may increase in response to increases in the value of the properties in the estate, particularly [No 102]. If the Court were simply to order now that legacies of $1.0 million be paid to each applicant, the Court might in ignorance of relevant circumstances impose unfairness on the applicants or other beneficiaries. [171] In the circumstances, I will publish these reasons for judgment and invite Joel and Alexander on the one hand and Laurence on the other to provide brief written submissions as to whether the Court should vary its stated intention to order that legacies of $1.0 million be paid to each of Joel and Alexander, and, if so, what the nature of that variation should be. The variation that I contemplate will be limited to some rational and fair proportional adjustment from the starting position of $1.0 million to reflect the effect of the payment of costs on the estate as a whole and possible increases in the value of relevant properties. I appreciate that some evidence as to the costs incurred, the effect of payment of costs on the estate, and the value of relevant properties may be necessary. I presently do not intend to entertain a further contentious hearing and I propose in the first instance to attempt to determine the final amount of the legacies on the basis of brief written submissions and limited evidence on the papers. I will, however, entertain submissions as to why this proposed course is not appropriate. Given the date when this judgment will be delivered, I will not expect that my Associate will receive the further information referred to in the preceding paragraph until 30 January 2023.
In the section of Weisbord No 4 in which I considered the orders that should be made, I made the following observations that are relevant to the present issue of whether additional costs orders should be made that vary the effect of order 2 made following the delivery of Weisbord No 2: [184] As to the costs of the proceedings, it is my understanding, as explained above, that most, if not all, of the costs of these proceedings and the probate proceedings are already the subject of the costs orders made by me and the Court of Appeal and that those orders remain valid and in effect. It will be appropriate, however, to give the parties an opportunity to make brief submissions on the issue of costs to ensure that my understanding of the position is correct. Given the time at which these reasons for judgment will be published, I will give the parties until 30 January 2023 to deliver submissions limited to 3 pages to my Associate.

Effect of delay following oral hearing

An oral hearing on the issues that are dealt with in these reasons for judgment took place on 7 February 2023. It will be necessary to refer to a number of aspects of the transcript of the hearing on that day, including first in relation to why it has taken the Court until 15 December 2023 to deliver this judgment.
As set out in [171] in the extract from Weisbord (No 4) that is set out above, I was concerned about the Court making orders in Joel's and Alexander's favour of specific amounts for further lump sum family provision without knowing what the present value of No 102 was, and without knowing whether the order that I made would have unexpected consequences in relation to the shares of other beneficiaries in Mrs Rodny's estate as a result of the need to pay costs in amounts that were not known to the Court. I said: "The variation that I contemplate will be limited to some rational and fair proportional adjustment from the starting position of $1.0 million to reflect the effect of the payment of costs on the estate as a whole and possible increases in the value of relevant properties."
First, I was informed at the hearing on 7 February 2023 by senior counsel for Mr Rodny that, although property in the estate would need to be sold to pay all costs ordered to be paid out of the estate, this would not have unexpected and unfair consequences in relation to the shares in the estate to which other beneficiaries were entitled: see T 9.29.
Secondly, although Mr Rodny's primary submission was that the Court should not act on updated evidence of the value of No 102, his senior counsel also submitted that the Court should not act on the appraisals submitted by Joel and Alexander. Those appraisals were annexed to the plaintiffs' written submissions and suggested values for No 102 of $8.5 million to $9 million in one case and $8 million to $8.5 million in the other case. The suggestion was made by the parties that, if the Court was minded to make orders in favour of Joel and Alexander on the basis of the current value of No 102, it would be preferable for the parties to arrange for an updated valuation to be provided by the professional real estate valuer who had valued the properties in the estate for the purposes of the original hearing. An informal arrangement was agreed between the parties and the Court that the parties would arrange for either the original or some other independent valuer to provide an updated valuation for the property. As it turned out, optimistically, senior counsel for Mr Rodny said at T 7.43: "That can be done reasonably promptly…"
In Mr Rodny's written submissions delivered before the latest hearing, a submission was made that if, over his objection, evidence was to be received by the Court as to the current value of No 102, there should be updated evidence of the value of all relevant assets in Mrs Rodny's estate. Had any party pressed at the hearing on 7 February 2023 for that to happen, I would have accepted that submission. However, the parties all acquiesced in an updated valuation only being obtained for No 102, which was clearly the most relevant property to the determination of the amount of any order for further provision to be made in favour of Joel and Alex, given the reasoning in my earlier judgments. As Exhibit 8 showed that over 90% of the value of Mrs Rodny's estate as at 31 March 2018 was represented by real property in Sydney (in one case indirectly via the real property owned by Karod Investments Pty Ltd), it is likely that the value of the estate generally has risen with the appreciation of Sydney real property values.
As it has happened, I commenced work on these reasons for judgment but as of 4 March 2023, when a significant part of the reasons had been completed, I put the draft judgment aside pending receipt of the current valuation, as I was unsure what effect the new value would have on the Court's process of reasoning.
The solicitor for Joel and Alexander did not provide the new valuation report to the Court until 24 August 2023. The valuer adopted $10.5 million as the current value for No 102. Mr Rodny has not sought to challenge the accuracy of that valuation.
The plaintiffs apologised to the Court for their delay in providing the new valuation report. Reasons were given, but there is no point in the Court commenting on the adequacy of those reasons. Matters were further delayed by some bickering between the parties' solicitors that was forwarded to my Associate in relation to the appropriateness of communications that she had received from the solicitors. There is no point in the Court commenting on those matters.
The delay in the parties providing the new valuation report is the primary cause of the delay in the Court delivering these reasons for judgment. That delay is most unfortunate given the lengthy history of these proceedings. However, it had the usual effect that the Court was engaged in its ordinary business dealing with matters in which litigants who had acted more promptly than the parties in this case had an interest, and the Court by then required much more time than ought to have been necessary to refresh its mind on the remaining issues and their connection to the history of these proceedings than ought to have been required.
The delay has had a further effect, as senior counsel for Mr Rodny suggested at the hearing on 7 February 2023 that it may be preferable for the Court to fix a further brief hearing, after the new valuation had been delivered, so that the parties could make submissions concerning its significance, and also so that they could deal with the outstanding costs issues more fully than they had done at that hearing. I did not agree to that course, but I left the possibility open, depending upon my consideration of the parties' oral and written submissions in the light of the content of the earlier judgments in these proceedings. Given the lengthy history, I said at T 11.47: "… if I can take a view about something, I will," meaning that I would decide issues on the material that I had received to date provided that I was satisfied that I could do so properly. However, the elapse of time since 7 February 2023 has now had the effect that I will decide the outstanding questions on the basis of the material that is now available, as I, as the trial judge, no longer have time to give to the parties for a further oral hearing.

Orders proposed by the plaintiffs

The plaintiffs submitted in par 15 of their written submissions dated 30 January 2023 that the Court should make the following costs orders in relation to the proceedings: (a) Order that the Plaintiffs' reasonable costs of the proceedings be paid on the ordinary basis out of the Estate up to 13 December 2017 and thereafter on an indemnity basis, as assessed or agreed. (b) Order that the Defendant's reasonable costs of the proceedings be paid on the ordinary basis out of the Estate, taking into account any credits for amounts already paid out of the Estate on an indemnity basis. (c) Confirm the Order of the Court of Appeal "that the costs of the appeal of the appellant and the respondents, assessed on the ordinary basis, be paid out of the estate of Rose Rodny". (d) Order that the above costs be paid from the residue of the Estate, at the discretion of the Defendant, such discretion to include the sale of [No 102] or any other property forming part of the estate.
The plaintiffs (and also Mr Rodny, as will be seen) have asked the Court to make orders that confirm the orders made by the Court of Appeal. That is not necessary, and the Court does not have power to confirm the orders made by the Court of Appeal in any legally meaningful sense.

Orders proposed by Mr Rodny

Mr Rodny attached to his 6 February 2023 submissions the following draft orders that he submitted should be made by the Court: A. Jeannette (Probate 2016/225246) 1. No order as to the costs of the plaintiffs to the intent that they bear their own costs of the proceedings. 2. The plaintiffs pay the defendant's ordinary costs of the proceedings. 3. To the extent the defendant's costs are not satisfied by order 2, the defendant's costs on the indemnity basis to be paid out of the estate of the deceased. B. Court of Appeal proceedings (being confirmation of existing costs orders) 1. The appellant's costs of the proceedings be paid out of the estate of the deceased. 2. The respondents' costs of the proceedings be paid out of the estate of the deceased. C. Jeannette (Family Provision 2015/324982) 1. Summons dismissed. 2. Plaintiff to pay the defendant's costs on the ordinary basis up to 12 August 2016 and on the indemnity basis thereafter. 3. To the extent the defendant's costs are not satisfied by order 2 herein, the defendant to have an indemnity out of the estate of the deceased. 4. The amount of $300,000 paid to the plaintiffs on account of costs pursuant to order made *** be treated as part payment of the costs of the proceedings at first instance and to the extent that there is thereby an overpayment of those costs by the estate, the extent of the overpayment shall be treated as a debt due to the estate by Jeanette. D. Joel (Family Provision 2015/324966) and Alexander (2015/324977) 1. The time for filing of the Summons be extended to 5 November 2015, the date of filing thereof. 2. The plaintiff have provision out of the estate of the deceased by way of a lump sum of $***. 3. **% of the costs of the plaintiff on the ordinary basis be paid out of the estate of the deceased. 4. The plaintiff to pay **% of the costs of the defendant on the ordinary basis. 5. The costs of the defendant on the indemnity basis to be paid out of the estate of the deceased. 6. The sum of $300,000 paid to the plaintiffs on account of costs pursuant to order made *** be treated as part payment of the costs of the proceedings at first instance and to the extent that there is thereby an overpayment of those costs by the estate, the extent of the overpayment shall be treated as a debt due to the estate by Jeanette.
Most of the orders proposed by Mr Rodny concern costs orders that he asks the Court to make in the four proceedings. Proposed order 2 in the family provision claims made by Joel and Alexander concern the family provision orders that the Court must now make. I will deal with that issue first.

Orders for further provision in favour of Joel and Alexander

Mr Rodny has strongly submitted that, as the Court rejected his application to lead fresh evidence on the issue of the plaintiffs' circumstances relevant to their family provision claims, it would be wrong and unfair for the Court to act upon current evidence of the value of No 102.
I reject the suggested equivalence between unidentified and open-ended new evidence relevant to the plaintiffs' circumstances that would risk a complete renewal of the hearing on the one hand, and evidence of the current value of the assets in the estate on the other hand. The latter type of evidence is an objective integer that may be crucial to the formulation and proper operation of the orders for further provision and costs orders that the Court might make. It is evidence that is independent of the conduct of the parties.
Furthermore, consistently with a practice that I understand Hallen J to have adopted as Succession List Judge in appropriate cases, had I made final orders for further provision in favour of Joel and Alexander, I would not have made orders for the payment of lump sums of $1 million in favour of each plaintiff out of Mrs Rodny's estate in ignorance of the relative effect of that order. I would have made an order that each plaintiff receive a lump sum equal to 20% of the market value of No 102.
The conclusions that I reached in Weisbord No 4 were influenced by the circumstances noted at [160], that Mrs Rodny encouraged both of her grandsons to believe that they would receive a share in No 102, and that the gift included by Mrs Rodny in the second typewritten draft will in 2008 in favour of her four grandchildren gave each of them an equal share in that property. Although that document was not admitted to probate, I accepted that it was evidence of Mrs Rodny's real testamentary intention.
As recorded at [169], which is extracted above, my reasons were based on the fact that No 102 had been valued before the original hearing at $5.1 million. As I noted in Weisbord No 1 at [19], the parties' agreement as to the value of the property in Mrs Rodny's estate was embodied in Exhibit 8, which gave No 102 the value of $5.1 million as at 31 March 2018. That is 5 and a half years ago.
As noted above, the evidence is that the current value of No 102 is $10.5 million. That it is almost exactly twice the value that was accepted by the parties as at 31 March 2018. The Court can take judicial notice of the fact that real property values in metropolitan Sydney have been steadily increasing over the last five years, and that No 102 is located in a suburb of the city that is generally accepted as being a highly desirable place to live.
On the basis of the two appraisals of the value of No 102 that were then available, and noting my reasoning at [169] of Weisbord No 4, the plaintiffs made the following submissions concerning the amount of the lump sum orders for further provision that should be made in favour of Joel and Alex: 4. Accordingly, the Plaintiffs submit that the amounts to Joel and Alexander should be increased to $1.6-$1.8m to reflect 80% of the current value, which takes into account the increased cost of providing each a similar unit or roof over their head, taking into account their significant health issues and their limited financial capacities…
The Court is entitled to infer that Ms Weisbord does not oppose the Court making orders for further provision in favour of Joel and Alexander that apply the logic set out in Weisbord No 4 to the current value of No 102. Mr Rodny has not put his own personal or financial circumstances in issue in these proceedings, and there was indefinite evidence to suggest that Mr Rodny is relatively wealthy.
In all of these circumstances, I will make orders for the provision out of the residue of Mrs Rodny's estate a lump sum legacy of $1.75 million to each of Joel and Alexander. I consider that to be a fair way to take into account the evidence of the increase in value of No 102. I have not simply multiplied the $1 million tentatively suggested in [171] of Weisbord No 4 by a factor of 2 to reflect the apparent doubling of the value of No 102. That makes an allowance for the fact that Joel and Alexander have not given specific evidence addressed to their accommodation needs. It allows for the fact that the new valuation has not been subject to scrutiny (having regard to the two appraisals that were submitted by the plaintiffs that were below the value adopted by the valuer). It also acknowledges that the evidence that was presented at the original hearing concerning the personal and financial circumstances of Joel and Alexander is now somewhat remote, so that it is fair that some effect should be given to Mr Rodny's objection to evidence being received of the current value of No 102, in circumstances where he has been denied the opportunity of demonstrating that Joel's and Alexander's circumstances have materially changed since 12 April 2018.

Costs orders sought by the plaintiffs

I will deal first with the costs orders proposed by the plaintiffs. It will be necessary for the Court to consider the orders proposed by the plaintiff on a provisional basis, as the costs orders proposed by Mr Rodny are in various respects completely inconsistent with the orders proposed by the plaintiffs. Consequently, I will in the first instance consider the plaintiffs' proposed orders, taking them at face value, as if Mr Rodny had not submitted that entirely inconsistent orders should be made.
The four orders are set out above at [50]. The only order which is the subject of serious contest is order (a), which I will repeat for convenience: (a) Order that the Plaintiffs' reasonable costs of the proceedings be paid on the ordinary basis out of the Estate up to 13 December 2017 and thereafter on an indemnity basis, as assessed or agreed.
The plaintiffs' application in order (a) for costs on the indemnity basis from 13 December 2017 is based upon the service of a Calderbank offer on that date. As I have explained above at [22], although the Court rejected the plaintiffs' attempt to rely upon the Calderbank offer in Weisbord No 2, they may be entitled to revive their reliance upon it after the Court had decided the family law claims, if that became necessary as a result of an appeal from my orders in the probate claim.
If order (a) was now made by the Court, it would have the effect of specifying the basis upon which the costs of order 2 made following the delivery of Weisbord No 2 were to be payable. As order 2 was made in all four proceedings, proposed order (a) would go further than to confirm order 2, and it would have the effect of entitling the plaintiffs to be paid their costs of the probate claim on the indemnity basis from 13 December 2017 out of Mrs Rodny's estate, even though the Court of Appeal has subsequently made orders that have had the effect of dismissing that claim. It would also have the effect that all of Ms Weisbord's costs of her failed family provision claim would be paid out of the estate, not limited to the costs of the original hearing that was the subject of order 2, but would include the subsequent costs of her claim, notwithstanding that as a result of Weisbord No 4, that claim will be dismissed.
I will assume for the present that order 2 will stand because it was not set aside or varied by the Court of Appeal. I will revisit this assumption when I consider the costs orders proposed by Mr Rodny.
Order 2 was made in respect of the proceedings up to the date of publication of Weisbord No 2 on 19 June 2019. The order did not extend to the costs of any aspect of any of the proceedings after that date. Accordingly, even if order 2 covers the costs of Ms Weisbord's family provision claim up to 19 June 2019, it does not cover the costs of that claim thereafter. The additional costs of that claim must be dealt with separately and on the basis that the claim failed. The ordinary outcome would be that costs of the additional proceedings on Ms Weisbord's family provision claim would follow the event. I will defer further consideration of this issue until I deal with the relevant costs order proposed by Mr Rodny.
If order 2 remains effective as the order of the Court, any further orders made by the Court concerning the costs of the proceedings after 19 June 2019 should be made separately and be formulated on the basis that they only apply to the costs of that period. The Court should not now make new costs orders that overlap the effect of existing costs orders.
Consequently, as the orders made by the Court of Appeal finally determined the probate claim, that claim has now been determined and is at an end and no further costs orders should be made by the Court in respect of it.
That leaves the family provision claims made by Joel and Alexander on which they have succeeded. The ordinary costs order in that circumstance would be that those claimants' costs of prosecuting their family provision claims after 19 June 2019 would be paid out of the estate of Mrs Rodny on the ordinary basis. If that order were made, those successful claimants would become entitled to be paid the whole of their costs out of the estate on the ordinary basis, partly by force of order 2 and partly by force of the new costs order.
The plaintiffs do not now challenge Mr Rodny's entitlement to be paid his costs as executor out of the estate on the indemnity basis.
That leaves the question of whether the Court should now make an order that any of the costs payable under order 2 or a new costs order should be payable on the indemnity basis.
It would be wrong for the Court retrospectively to order that the plaintiffs' costs the subject of order 2 be payable for any period on the indemnity basis in respect of the probate claim, as the Court now knows that that claim has been dismissed. Furthermore, following the making of the Court of Appeal's orders, the Court is functus officio and it is now too late for the Court to make any further order affecting the costs of that claim.
As the plaintiffs' claim that their costs from 13 September 2017 should be paid on the indemnity basis was dismissed in Weisbord No 2, their renewed reliance on the Calderbank offer made on that date could only be effective in respect of costs incurred thereafter. That is an issue that can only arise in relation to the costs of Joel and Alexander in relation to their successful prosecution of their family provision claims after 13 September 2017.
On the present application for an order that their costs be paid out of Mrs Rodny's estate on the indemnity basis, the plaintiffs relied upon the whole of the 13 September 2017 Calderbank offer, without the amounts of the suggested compromise being redacted. It will be recalled that the redaction of those amounts was one of the reasons why the application for indemnity costs was dismissed in Weisbord No 2.
The 13 September 2017 letter from the plaintiffs' solicitors to Mr Rodny's solicitors that contained the Calderbank offer relied upon by the plaintiffs was stated to be "Without Prejudice Save As To Costs," and relevantly provided: … I am therefore instructed by my clients to offer to settle each of the matters under the following terms: 1) In [Joel's family provision application] Joel to receive $399,999. 2) In [Alexander's family provision application] Alexander to receive $399,999. 3) In [Ms Weisbord's family provision application] Ms Weisbord to receive $149,999. 4) In the [probate claim] - a. Karly Marks and Jordana Michael to receive $400,001 each; b. $1,200 to cover the cost of group family counselling sessions for did this any parties that wish to attend; c. All individuals and entities to be released from any and all debts to the estate; d. [Ms Weisbord] to receive the entire contents of [No 77] in addition to the real property devised to her under the probate and Will; e. All individuals to receive their specific bequests as set out in the probate and Will. 5) Plaintiffs' legal costs to be paid as agreed or assessed in each of the above-mentioned matters. Given the potential values of [No 102] as between $5m - $6m, [the property owned by Karod Investments Pty Ltd] (appraised at $4m) and the significant and undocumented residue of the estate, my clients believed that this offer represents a significant compromise in the circumstances. … This offer remains open until 20 September 2017 and is made in accordance with the principles enunciated in the decision of Calderbank v Calderbank and my clients reserve their right to tender this letter on an application for costs if the offer is rejected. …
Karly Marks and Jordana Michael are Ms Weisbord's daughters. They did not join as plaintiffs in the probate claim and they did not make family provision claims.
In my view, on the proper construction of this letter, Mr Rodny was given the choice of accepting it in whole or rejecting it. Although the letter contained an "offer to settle each of the matters" and the consideration that Mr Rodny was asked to agree to was stated separately for each of the claims, I do not think that the letter invited Mr Rodny to pick and choose which of the claims he would agree to compromise on the terms offered. That view is reinforced by the statement "my clients believed that this offer represents a significant compromise," where the word "offer" is in the singular. "Offer" is used in the singular in a number of other places in the letter.
Numbered paragraphs 3 and 4 deal with Ms Weisbord's family provision claim and the probate claim, both of which have been dismissed. In respect of these claims the offer made in the letter was not more favourable than the result achieved.
Furthermore, Ms Marks and Ms Michael were not even parties to the probate claim.
Even though, in the events which have happened, the global result achieved by the plaintiffs in respect of the four proceedings is more favourable to the plaintiffs, taken as a whole, than the amount for which the plaintiffs offered to compromise the four proceedings, the offer is not, in my view, an effective Calderbank offer. In principle, as stated by GE Dal Pont in Law of Costs (5th ed, 2021, LexisNexis) at [13.69]: "Unlike the rule-based offers of compromise, no formality requirements attach to a Calderbank offer." Furthermore, care must be taken in the consideration of what is required of a settlement offer for it to be taken into account when the Court considers the costs orders that should be made, as the Court always has a discretion under s 98 of the Civil Procedure Act in respect of the costs orders that it makes. It is not necessary for the Court to determine whether Calderbank offers should be made separately for each claim in order to be effective on the issue of costs, or whether Calderbank offers may be effective when they only give the offeree the option to accept a global compromise that is offered in respect of separate proceedings, even where the basis of the compromise is specified separately for all of the proceedings. In deciding what effect should be given by the Court to a failure by a party to accept a Calderbank offer made by the other party, the reasonableness of the failure is a primary consideration: see for example Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2005] NSWSC 481 at [31] per McDougall J. It is not unreasonable in my view for a party to have rejected an offer to compromise on a global basis a number of different proceedings, where the result of the Court's determination of those proceedings is that some of them succeed but others fail. The party given the offer is not required to make a judgment as to whether on an overall basis, taking into account the possibility of wins and losses, the parties making the offer are likely to do better in aggregate when the proceedings are decided than the aggregate amount of the offer. If that requirement were imposed on the party given the offer, it might require the party to accept an adverse outcome in proceedings that the party rightly believed will fail against the party. The party given the offer has legal rights that the party is entitled to defend, and a reasonable response to a single offer to compromise multiple proceedings should not require the acceptance of liability in some proceedings which the party rightly believes will fail.
Accordingly, the Court will make a costs order in Joel's and Alexander's family provision claims that they be paid their costs of those claims out of the estate on the ordinary basis from 19 June 2019.

Costs orders sought by Mr Rodny

I will deal first with the orders sought by Mr Rodny in the plaintiffs' probate claim. The effect of the orders sought is that no order be made as to the costs of the plaintiffs to the intent that they bear their own costs of the proceedings; the plaintiffs pay Mr Rodny's costs of the proceedings on the ordinary basis, and that Mr Rodny be indemnified out of the estate for the balance.
Those orders are inconsistent with order 2 made following Weisbord No 2 and the costs orders made by the Court of Appeal in the appeal in the probate claim.
Order 2 was recorded in the Court's computerised Court records system on 1 July 2019, so it is taken to have been entered on that date by operation of Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 36.11(2).
By order 4, order 2 was stayed pending the decision of the Court of Appeal but, notwithstanding that Mr Rodny's application in order 5 sought in the notice of appeal was for an order that the present plaintiffs pay his costs of the trial, the Court of Appeal did not set aside or vary order 2.
In Roads and Traffic Authority of New South Wales v Palmer (No 2) [2005] NSWCA 140, Giles JA (Spigelman CJ and Handley JA agreeing) considered the power of the Court to make orders varying costs orders. The decision was delivered when the applicable regime was found in the Supreme Court Rules 1970 (NSW), however the relevant rules are in substantively the same terms as the UCPR.
Giles JA found that a costs order determines a "claim for relief" within the meaning of the equivalent of UCPR r 36.16(3)(a), meaning that the 14 day time limits for variation in rr 36.16(3A) and (3B) apply.
His Honour's reasons included: [14] The Rules provide for the entry of judgments and orders. Part 41 r 11 provides that, with exceptions not presently relevant, any judgment or order shall be entered. Part 41 r 13 provides for the manner of entry. The rules were taken up by the plaintiff in obtaining entry of, amongst other orders, the costs orders. [15] As a general rule, the Court has no power to vary a judgment or order once it has been entered. This is based on the principle of finality of litigation. In Bailey v Marinoff (1971) 125 CLR 529 at 530 Barwick CJ said - Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. [16] See also Gamser v Nominal Defendant (1977) 136 CLR 145 at 147, 154; FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 279; DJL v The Central Authority (2000) 201 CLR 226 at 245; Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146 at 151-2. [17] Part 52A r 5 provides that the Court may, in any proceedings, exercise its powers and discretions as to costs at any stage in the proceedings or after the conclusion of the proceedings. The rule is relevantly concerned with costs orders after the substantive decision has been given, and must be subject to finality from entry of costs orders already made. New South Wales Insurance Ministerial Corporation v Edkins relevantly held that a judge was not functus officio after making costs orders if, although unknown to the judge, a costs argument remained to be heard. There was no question of entry of judgment. [18] Thus the plaintiff did not identify a source of power after the entry of the costs orders. It is curious: the note to Pt 52A r 5 in Ritchie's Supreme Court Procedure NSW states that costs orders may be made or reconsidered "at any time before the entry of judgment". Was there further oversight? Yet the plaintiff did not respond to the Council's submission that the entry of the orders precluded their variation. [19] By Pt 40 r 9(1) the Court may set aside a judgment, and by Pt 40 r 9(3) the Court may set aside or vary an order, where notice of motion for the setting aside or variation is filed before entry of the judgment or order. This recognises the finality of entry of a judgment or order, and mollifies it by allowing reconsideration after entry provided the notice of motion was filed prior to entry. In the present case the wish to apply for the costs order was informally made known prior to the entry of the orders, although it is not clear that it was made known at least to the Council. But no notice of motion was filed until after the orders had been entered (and strictly no notice of motion for variation has yet been filed). [20] By Pt 40 r 9(4), in addition to its powers under the subrules earlier mentioned - … the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief. [21] This provides a limited exception. The costs orders made on 28 March 2003, however, determined claims for relief, the relief claimed being orders disposing of the costs of the trial and of the appeals. The subrule does not avail the plaintiff. …
The decision of White JA (Basten and Macfarlan JJA agreeing) in Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin (No 2) [2021] NSWCA 98 collects the authorities regarding the general rule that a motion for variation of a costs order must be filed within 14 days of entry (or that, at the least, the Court must be notified within 14 days of a party's intention to apply for a variation): [35] The general rule is that a final costs order, once entered, cannot be varied unless a notice of motion is filed within 14 days after entry (Roads and Traffic Authority of NSW v Palmer (No 2) [2005] NSWCA 140 at [20] -[21]; Deputy Cmr of Taxation v Meredith (No 2) (2008) 75 NSWLR 462 at 464 -466, [6] -[16]; Bennette the v Cohen (No 2) [2009] NSWCA 162 at [6] -[11]; Coastwide Fabrication & Erection Pty Ltd v Honeysett (No 2) [2009] NSWCA 291 at [12] -[17]; Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336 at [5] -[11]; Malouf v Prince (No 2) [2010] NSWCA 51 at [7] -[24]; Habib v Nationwide News Pty Ltd (No 2) [2010] NSWCA 291 at [33] -[39]; AT v Cmr of Police, NSW (No 2) [2010] NSWCA 337 at [6] -[13]; Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145 at [10] -[11], [34]; Kable v New South Wales (No 2) [2012] NSWCA 361 at [9] -[15]; Hagerty v Hills Central Pty Ltd (No 2) [2018] NSWCA 279 [10]-[14]). [36] There are decisions of this Court relaxing the operation of r 36.16(3A) pursuant to s 14 of the Civil Procedure Act 2005 (NSW) where notice of the intention to apply for a variation of a final costs order is given within 14 days.
The legal position therefore is that the costs of the probate claim have finally been determined by orders of the Court that have been entered, and it is now too late for Mr Rodny to make an application for an order setting aside or varying the orders that have already been made in those proceedings.
I will now turn to the consideration of the orders sought by Mr Rodny in Ms Weisbord's family provision claim.
In the manner that I have explained above when dealing with the orders sought by the plaintiffs, order 2 made following Weisbord No 2 covered Ms Weisbord's costs of her family provision claim up to 19 June 2019. That order was entered in Ms Weisbord's family provision claim on 1 July 2019. It is now too late for this Court to make an order setting aside or varying order 2. In any event, as I have explained above, my understanding is that order 2 was made with the approval of Mr Rodny.
As I have also explained above, order 2 does not cover Ms Weisbord's costs after 19 June 2019. Ms Weisbord prosecuted her family provision claim after it was revived as a result of the orders made by the Court of Appeal, and her claim failed. No satisfactory reason has been offered as to why costs should not follow the event after 19 June 2019.
Mr Rodny seeks an order that Ms Weisbord pay his costs on the indemnity basis after 12 August 2016. That claim has the result that Mr Rodny seeks an order that the costs payable to him by Ms Weisbord be on the indemnity basis from 19 June 2019.
Mr Rodny's claim for an order that Ms Weisbord pay his costs on the indemnity basis is based on an offer of compromise made by Mr Rodny to Ms Weisbord on 11 August 2016, which was made in the following terms: To the Plaintiff Jeannette Weisbord: The Defendant offers to compromise the whole of these proceedings by consenting to the following orders: 1. Summons dismissed. 2. Plaintiff's costs agreed in the sum of $5,000 to be paid out of the Estate of the deceased. 3. Defendant's costs on the indemnity basis to be paid out of the Estate of the deceased. NOTE: (a) This offer is made pursuant to UCPR Part 20 Division 4. (b) This offer is open until noon on 16 September 2016, at which time it will lapse. (c) In the event that this offer does not comply with the rules as to Offers of Compromise, the same offer is made pursuant to the principles in Calderbank v Calderbank [1973] 3 All ER 333 and will be relied upon in any application for a special costs order.
I think that the offer of compromise complies with the requirement in r 20.26(2) that the offer be exclusive of costs, because par 2 was an offer to pay an amount towards Ms Weisbord's costs, and par 3 did not require Ms Weisbord to pay any of Mr Rodny's costs. Paragraph 3 involved a recognition of the ordinary rule that, as the executor of Mrs Rodny's estate, Mr Rodny was entitled to be indemnified for his costs out of the estate.
The difficulty with the offer of compromise is that it required Ms Weisbord to accept the dismissal of her family provision claim in return for the trivial contribution to her costs of $5,000. That raises the issue of whether the offer involved a sufficient element of compromise to be treated as an offer of compromise under r 20.26 for the purposes of Pt 42, Div 3 of the UCPR.
The Court of Appeal held in Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 (Spigelman CJ, Beazley and McColl JJA): [25] There is a considerable body of authority in this court that an offer of compromise under r 20.26 of the UCPR must be a real and genuine offer, if an order for indemnity costs is to be made pursuant to rr 42.14, 42.15 or 42.15A. (See Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; (2006) 67 NSWLR 706 at [8] and references therein. See also Leichhardt Municipal Council supra at [23]-[24].) The terminology is not entirely apposite, but it is serviceable. (See also Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 at [23].) [26] In Robb Evans, the appellant had made an offer of compromise of $2,000 plus costs. The offer was made under r 20.26 of the UCPR. The respondent's claim, for a sum in excess of $800,000, failed. The appellant claimed indemnity costs in accordance with r 42.15. The court concluded that the offer could not be treated as a "genuine offer of compromise", even if the respondent's claim had limited prospects of success. The court considered that the respondent's claim was not frivolous or vexatious and it described the appellant's offer as "trivial and contemptuous" and not a genuine offer of compromise. Justice Basten (Campbell JA agreeing) held that in those circumstances the offer did not engage the costs consequences provided for in r 42.15. [27] There will be situations in which a purported offer does not answer the description of "an offer of compromise" referred to in r 42.13, being "an offer … to compromise any claim in the proceedings" within r 20.26. A two judge bench of this court determined that that was the situation in Robb Evans supra at [23]. Justice Basten went on, however, at [24] to determine, in the alternative, that if the rule was engaged, then the proper exercise of the court's discretion would be to "otherwise order", in accordance with r 42.15. [28] It will rarely be the case that a decision needs to be made as to whether or not an "offer" answers the description of an "offer of compromise" within the rules. To the extent that the element of compromise is absent, the court will be more likely to "otherwise order". In the present case, we are content to proceed on the basis of exercising the discretion to "otherwise order". … [31] An offer which is in substance an invitation to surrender can result in the successful triggering of the indemnity costs mechanisms under the rules. (See r 20.26(2); Leichhardt Municipal Council supra at [36]-[37], [40].) However, as Basten JA suggests in Robb Evans supra at [20], the claim or defence would have to approach something of the character of being frivolous or vexatious for that to be the case. (See also Hancock v Arnold supra at [17].) If it were otherwise, the public policy to encourage settlement would rarely be served, in an all or nothing case. These proceedings were not of that character, as indicated by the success which the respondent had at first instance. [32] The normal order for costs, even in a clear case, is that each party bears its own costs without full indemnity. If a derisory offer, of the kind made in these proceedings, could result in an order for indemnity costs, then it is likely that many, perhaps most, contract interpretation disputes would result in an indemnity costs order, if the formality of an offer in accordance with the rules had been made at an early stage. If the appellant were to succeed in the present case, it is quite likely that such an offer would accompany most statements of claim as a matter of commercial practice. The purpose of the special order - to encourage settlement - would no longer be served. An order for indemnity costs could, in our opinion, become the normal order in many commercial disputes.
Although I was not satisfied that Ms Weisbord had established that adequate provision for her had not been made under the will of Mrs Rodny that was admitted to probate, her claim was by no means trivial or frivolous. I am clearly of the opinion that the offer made by Mr Rodny in the offer of compromise was not a real or genuine compromise, and should not benefit from the operation of UCPR r 42.15A by reason of the Court making an order that the costs that Ms Weisbord will be ordered to pay as a result of her failed family provision claim should be on the indemnity basis.
Order 4 proposed by Mr Rodny in Ms Weisbord's family provision claim and order 6 proposed in Joel's and Alexander's family provision claims have been proposed because on 1 July 2019, the Court made the following orders in those proceedings: … 2. Order that the Plaintiffs' reasonable costs of the proceedings be paid on the ordinary basis out of the Estate. … 6. Order, pursuant to s 86 of the Civil Procedure Act 2005 (NSW) that the Plaintiffs be paid an interim costs order from the residue of the estate of the deceased in the sum of $300,000 ("Interim Costs Payment"), such payment to be made within seven (7) days of the plaintiff, Jeanette Weisbord, providing to the Defendant's solicitors a duly executed Deed of Charge in the form annexed to these Orders. 7. Note the Plaintiff Jeannette Weisbord's undertaking to the Court to repay to the Estate the Interim Costs Payment in the event that the Appeal is successful and the Plaintiffs are ordered to pay the Defendant's costs to date, within 7 days of any such order. 8. Declare that in the event the Plaintiffs are required to repay the Interim Costs Payment by reason of the Appeal being successful and the Plaintiffs being ordered to pay the Defendant's costs to date, the Defendant need not transfer to the plaintiff Jeannette Weisbord the property known as [No 77] until the Interim Costs Payment is repaid. 9. Declare that in the event the Plaintiffs failed to repay the Interim Costs Payment if so required pursuant to these orders, then the Defendant may sell [No 77] and pay the net proceeds of sale to the Plaintiff Jeannette Weisbord after deducting the amount of the Interim Cost Payment.
The orders sought by Mr Rodny are reasonable in that they will make clear that the $300,000 that has already been paid out of the estate to the plaintiffs must be treated as a part payment of the costs to which they are entitled as a result of all of the costs orders made in their favour in any of the proceedings. Given the amount of costs that the Court has been told the plaintiffs have incurred, it is unlikely that these orders will have any operative effect.
Orders 3 and 4 proposed by Mr Rodny in relation to the family provision claims by Joel and Alexander would have the effect that only a stated percentage of their costs be paid out of Mrs Rodny's estate and they would be required to pay a percentage of Mr Rodny's costs.
As has been explained above, order 5 of the orders made following Weisbord No 2 granted leave to Mr Rodny to make a formal application, after the decision of the Court of Appeal, to seek an order under s 98(4) of the Civil Procedure Act in respect of the plaintiffs' costs payable pursuant to order 2.
Not only has Mr Rodny not made a formal application, but the application that he has made relates only to so much of the plaintiffs' costs to which they became entitled under order 2 that related to Joel's and Alexander's family provision claims. In relation to the costs of those claims after 19 June 2019, Mr Rodny is entitled to make a claim under s 98(4) without needing the leave of the Court, as these reasons for judgment are dealing with the costs of those family provision claims after that date.
Section 98(4) empowers the Court to make orders of the types listed "at any time before costs are referred for assessment," so it is open to Mr Rodny to seek an order under sub-par (c) that Joel and Alexander are entitled to "a specified proportion of the assessed costs." So far as the costs to which Joel and Alexander are entitled under order 2 for the period up to 19 June 2019 are concerned, the effect of the leave granted by order 5 is that Mr Rodny may apply for an order that Joel and Alexander only be entitled to a proportion of the costs that they would otherwise be entitled to recover under order 2 in respect of the costs of their family provision claims. At this stage, the leave granted by order 5 would not extend to permitting Mr Rodny to seek an order that Joel and Alexander be ordered to pay him a portion of his costs, contrary to the effect of order 2. That means that, for the period up to 19 June 2019, Mr Rodny may pursue his proposed order 3, but not proposed order 4.
Although, in principle, Mr Rodny is free to pursue both proposed orders 3 and 4 for the period after 19 June 2019, I am satisfied that nothing in the preparation or conduct of Joel's and Alexander's family provision claims in the period after 19 June 2019 involved any waste of costs that could justify the Court making either of the proposed orders in respect of the costs of the family provision claims in that period. The "egregious waste of legal costs in the way that these proceedings were prepared on behalf of the plaintiffs" that I considered in Weisbord No 1 at [311] to [330], and have referred to above, related entirely to the plaintiffs' conduct of the proceedings up to the end of the original hearing.
Mr Rodny's claim for orders against Joel and Alexander in the form of proposed order 3 has not been supported by any affidavit evidence or detailed submissions that would enable the Court to make an objective judgment about the extent of the waste of legal costs, or the proportion that the waste may have borne to the whole of the costs that were incurred. Nor has Mr Rodny provided a rational basis for the Court to allocate the waste as between the probate claim and Ms Weisbord's family provision claim on the one hand, and Joel's and Alexander's family provision claims on the other.
Although in broad principle there is a basis for concluding that some part of the costs incurred by Joel and Alexander in pursuing their family provision claims up to 19 June 2019 contributed to the waste of legal costs, the informal nature of Mr Rodny's application has not provided the Court with a basis to make a just judgment as to the proportion of Joel's and Alexander's entitlement to costs that should be the subject of a reduction under s 98(4) of the Civil Procedure Act.
Consequently, I will not make the costs orders that will be made in favour of Joel and Alexander subject to a proportionate reduction.
As it appears that Mr Rodny will have to sell No 102 to pay the lump sum further provision to Joel and Alexander, and as the current value of that property has been an important integer in the Court's determination of the amount of the further provision, I will adjust the usual order for payment of interest so that interest will become payable if the lump sums have not been paid within 6 months of the date this judgment is delivered.

Orders

The orders of the Court in the three proceedings that have not already been determined will be as set out below.
Proceedings No 2015/324982 1. Summons dismissed. 2. Order the plaintiff to pay the defendant's costs of the proceedings from 19 June 2019 on the ordinary basis. 3. Order that the defendant's costs of the proceedings from 19 June 2019 be paid out of the estate of the deceased on the indemnity basis, making allowance for all costs already paid out of the estate to the defendant. 4. Confirm all existing costs orders in the proceedings. 5. Order that the sum of $300,000 paid to the plaintiff as well as the plaintiffs in proceedings 2015/324966, 2015/324977 and 2016/225246 on account of costs be treated as a part payment of the costs of those proceedings and to the extent that there is thereby any overpayment in aggregate of those costs by the estate of the deceased, the extent of the overpayment shall be treated as a due by the plaintiffs in those proceedings to the estate.
Proceedings 2015/324966 1. Order that the time for the filing of the summons be extended to 5 November 2015, the date of filing thereof. 2. Order that the plaintiff have provision out of the estate of the deceased by way of a lump sum of $1,750,000. 3. Order that the provision in order 2 be born to the extent possible out of the residue of the estate. 4. Order that no interest is to be paid on the lump sum, if it is paid within 6 months of the date of this judgment, otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from that date until the date of payment of the lump sum. 5. Order that the plaintiff's costs of the proceedings from 19 June 2019 be paid out of the estate of the deceased on the ordinary basis. 6. Order that the defendant's costs of the proceedings from 19 June 2019 be paid out of the estate of the deceased on the indemnity basis, making allowance for all costs already paid out of the estate to the defendant. 7. Confirm all existing costs orders in the proceedings. 8. Order that the sum of $300,000 paid to the plaintiff as well as the plaintiffs in proceedings 2015/324982, 2015/324977 and 2016/225246 on account of costs be treated as a part payment of the costs of those proceedings and to the extent that there is thereby any overpayment in aggregate of those costs by the estate of the deceased, the extent of the overpayment shall be treated as a due by the plaintiffs in those proceedings to the estate.
Proceedings 2015/324977 1. Order that the time for the filing of the summons be extended to 5 November 2015, the date of filing thereof. 2. Order that the plaintiff have provision out of the estate of the deceased by way of a lump sum of $1,750,000. 3. Order that the provision in order 2 be borne to the extent possible out of the residue of the estate. 4. Order that no interest is to be paid on the lump sum, if it is paid within 6 months of the date of this judgment, otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from that date until the date of payment of the lump sum. 5. Order that the plaintiff's costs of the proceedings from 19 June 2019 be paid out of the estate of the deceased on the ordinary basis. 6. Order that the defendant's costs of the proceedings from 19 June 2019 be paid out of the estate of the deceased on the indemnity basis, making allowance for all costs already paid out of the estate to the defendant. 7. Confirm all existing costs orders in the proceedings. 8. Order that the sum of $300,000 paid to the plaintiff as well as the plaintiffs in proceedings 2015/324982, 2015/324966 and 2016/225246 on account of costs be treated as a part payment of the costs of those proceedings and to the extent that there is thereby any overpayment in aggregate of those costs by the estate of the deceased, the extent of the overpayment shall be treated as a due by the plaintiffs in those proceedings to the estate.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2023

(2020) 102 NSWLR 403

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