Reissis v Xafellis & Anor

These proceedings were fixed by an order of this Court for a Court-annexed half-day mediation to be conducted by a Registrar on Wednesday 22 April 2026. The plaintiff attended at the appointed time for the mediation at 9:30 am with both her barrister and solicitor.

At approximately 7.20am that morning the solicitors for the defendant emailed the Court and the plaintiff proposing that the plaintiff consent to the Court vacating the mediation. The defendants perfected a fait accompli by then failing to attend the mediation.

The plaintiff seeks further provision under Succession Act 2006, s 59 out of the estate of her late mother. The defendants are the plaintiff’s grandparents and the executors of the mother’s will. The net assets of the estate are less than $1 million. The conflict between the parties is difficult and the plaintiff’s accommodation is presently insecure. The Court fixed the mediation so the parties would have an opportunity to resolve their differences before avoidable legal costs were expended and so the plaintiff would have a near term opportunity to make realistic plans to secure her future accommodation.

The defendants’ solicitor has not offered any reasonable excuse for his and their failure to attend the mediation. He referred to the defendants’ other competing childcare and employment commitments as excuses for their non-attendance. But the mediation date was fixed sufficiently in advance for the defendants to make other arrangements to meet their other commitments for half a day. This is not a case of the defendants being unable to attend the mediation because of an unforeseen event in their personal lives.

The defendant’s conduct shows overt disregard for the Court’s orders. The timing of the email on the morning of the mediation had the maximum disruptive effect on the plaintiff and the Court. The Court closely manages its limited resource of Registrars’ available Court-annexed mediation time. The Court’s Registrars have specialist mediation skills and the Court makes this important resource available free of charge to assist parties, especially those with limited financial resources. The resource is much in demand and mediations often can only be fixed several months ahead.

The defendants’ email on the morning of the mediation is therefore an especially aggravating and inconsiderate factor, which was compounded by their subsequent non-attendance. The effect of the defendant’s conduct was to preclude the Court from using this limited and valuable resource to benefit other deserving litigants. Moreover, their conduct was calculated to inconvenience the plaintiff’s lawyers who had set aside the time for the mediation.

The Court orders parties to participate in mediations, including Court-annexed mediations, for the ultimate benefit of the parties to try and save them costs, by promoting the early resolution of proceedings. The failure of a party to attend an appointed mediation such as this one, (a) increases the legal costs of the parties, (b) wastes valuable Court resources, and (c) extends the burden of the conflict in the proceedings. Such conduct is the very antithesis of the discharge by the parties of their duties under Civil Procedure Act 2005, s 56(3) to assist the Court to further the overriding statutory purpose by participating in the processes of the Court and thereby promoting the just, quick and cheap resolution of proceedings.

The failure by the defendants to attend the mediation exhibits aggravating factors and is unacceptable at every level. In the Court's view, it warrants the Court ordering the defendants to pay the plaintiff’s costs thrown away by their failure to attend the mediation on the indemnity basis.

The making of an indemnity costs order should ensure the defendants adhere to the Court's orders in the future, including to attend future mediations. But these defendants should also realise that their act of procedural delinquency has financial consequences. This episode is separate from the rest of the proceedings and warrants the Court making an order that the costs be payable forthwith under Uniform Civil Procedure Rule 2005 (“UCPR”), r 42.7. The Court will require these costs to be paid by the defendants within 14 days.

The plaintiff claims the sum of $5,437.30 as the quantum of the costs thrown away by reason of the aborted mediation on Wednesday. The legal representatives of the plaintiff provided fully itemised memoranda of fees to the defendants to justify the amount claimed. No specific objection has been taken by the defendants as to the quantum of the fees.

The Court is confident in accordance with the applicable authorities that it has sufficient information to make a specified gross sum cost order pursuant to Civil Procedure Act, s 98(4)(c) instead of assessed costs: Hamod v State of New South Wales [2011] NSWCA 375 and Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213. This is an appropriate case to make such an order, where a costs negotiations or assessment would cause inconvenience and delay and where it is important to rapidly quantify for the defendants’ the financial consequences of their delinquency in this important interlocutory step.

Although the Court has made orders for the payment of costs on an indemnity basis, the amount claimed should be moderated to reflect the likelihood that some reduction of the costs claimed would occur upon a costs assessment. The Court will therefore fix a specified gross sum of $5,000 pursuant to Civil Procedure Act, s 98(4)(c) instead of assessed costs.

The defendants should not be able to exercise their rights of indemnity against estate assets in respect of these costs. Their conduct in failing to attend the mediation in the circumstances that occurred was unreasonable: UCPR, r 42.25. The orders below will deny the defendants an indemnity out of the estate assets.

The solicitors and counsel for the plaintiff have been retained in this matter upon a pro bono basis. The Court was told that at the conclusion of the proceedings if successful they are likely to claim an indemnity in respect of the plaintiff’s legal costs. The plaintiff has been successful on the present application. But neither the Court nor the legal representatives of the parties have had sufficient time to examine the plaintiff’s liability to meet her legal representative’s legal costs in the event she is successful on an interlocutory or final basis. The appropriate course therefore in the interim is for the costs ordered to be paid into Court.

For these reasons the Court makes the following orders: