Australia, July 30 -- New South Wales Land and Environment Court issued text of the following judgement on June 30:

1. I delivered judgment in these proceedings on 30 May 2025: McLean v Cree [2025] NSWSC 577 (the principal reasons). I ordered pursuant to s 59 of the Succession Act 2006 (NSW) that further provision in the sum of $75,000 should be made for the plaintiff. I further ordered that the interest which the deceased held in the Malabar property and which was distributed by the defendant, as executor of his estate, to herself as sole beneficiary should be designated as notional estate for the purpose of satisfying the order for further provision.

2. These reasons deal with the question of the costs of the proceedings.

Plaintiff's submissions

3. The plaintiff submits that he has been successful in the proceedings and that costs should follow the event. He further submits that he should be entitled to his costs on an indemnity basis for the whole of the proceedings or, alternatively, from the time of an offer made on 29 April 2025.

4. As to his general claim to indemnity costs for the whole of the proceedings, the plaintiff submits that the defendant unreasonably refused the plaintiff's requests for reimbursement in relation to the repair of the lake Cathie property well prior to the commencement of the proceedings. The plaintiff points to paragraph [28] of the principal reasons where I expressed the view that his requests were reasonable. The plaintiff submits that if the defendant had acceded to those requests earlier then the proceedings could have been avoided altogether.

5. The plaintiff relies in the alternative on an offer sent to the defendant on 29 April 2025 (the Offer). The Offer was attached to a letter, headed 'without prejudice save as to costs', sent from the plaintiff's solicitors, Halyburton Legal, to the defendant's solicitors, Turner Freeman. The Offer was explicitly made pursuant to rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'). It was also expressed to be an offer made in accordance with the principles in Calderbank v Calderbank [1976] Fam 93.

6. The terms of the Offer were (a) an order pursuant to s 59 of the Succession Act in favour of the plaintiff in the amount of $70,000 and (b) the plaintiff's costs to be paid on the ordinary basis out of the estate.

7. The plaintiff submits that he has achieved a more favourable outcome than that proposed in the Offer. He submits that pursuant to rule 42.14 of the UCPR, he is entitled to costs on the indemnity basis from 29 April 2025.

8. The plaintiff also submits that any costs order in his favour should be made against the defendant personally. That submission is made with reference to s 95 of the Probate and Administration Act 1898 (NSW):

95 Right to follow assets

Nothing contained in section 92, 93 or 94 prejudices the right of any beneficiary, creditor or other person who has a claim in respect of the assets of the estate of a testator... to follow those assets or any part of those assets into the hands of the persons or any of the persons among whom those assets or that part may have been distributed or who may have received those assets or that part.

9. The plaintiff points to the reasons of Handley JA in Melbourn v Stephenson [2002] NSWCA 403 at [13] where his Honour said in obiter dicta:

"Section 95 of the Wills Probate and Administration Act preserves the direct right of action in equity against beneficiaries when the right against the legal personal representatives has become barred, pursuant to earlier sections, by distribution without notice following appropriate advertisements for claims. This section provides that nothing in those sections 'prejudices the right of any beneficiary, creditor or other person who has a claim in respect of the assets of the estate of a testator or an intestate' to follow those assets into the hands of the persons to whom they have been distributed. The plaintiff may have had a right of action against the beneficiaries after judgment as a creditor or before judgment as an 'other person who has a claim'".

10. Finally, and in light of what I said in paragraphs [70]-[87] of the principal reasons, the plaintiff submits that I should make notional estate orders in relation to any costs order, in addition to a personal order against the defendant.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197bdd1d3c9a0614b4b8ea03)

Disclaimer: Curated by HT Syndication.