Chant v Curcuruto; Chant v Curcuruto (No 2) [2021] NSWSC 882

Supreme Court New South Wales

Medium Neutral Citation: Chant v Curcuruto; Chant v Curcuruto (No 2) [2021] NSWSC 882 Hearing dates: 7 July 2021 Date of orders: 21 July 2021 Decision date: 21 July 2021 Jurisdiction: Equity Before: Hallen J Decision: The Court in each proceeding: (a) Orders that the Plaintiffs pay the Defendants' costs, calculated on the ordinary basis. (b) Orders that the Defendants' costs, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate. (c) Orders that any difference between costs calculated on the ordinary basis recovered from the Plaintiffs, and the costs, calculated on the indemnity basis, of the Defendants be paid out of the estate. (d) Makes no order as to the Plaintiffs' costs, to the intent that they are to bear their own costs. (e) Orders that the Court Books be returned. Catchwords: COSTS — Two contested Probate proceedings involving different will-makers (husband and wife) heard consecutively with the evidence in one being evidence in the other – Probate sought in respect of the last Will of the two different will-makers – Plaintiffs unsuccessful in propounding each of the Wills – Defendants succeeded in propounding the penultimate Will of each will-maker - Only outstanding issue for determination is whether the Plaintiffs' costs of each proceeding should be paid out of the estate of each will-maker or whether they should pay the Defendants' costs, calculated on the ordinary basis of the proceedings – Otherwise agreed that Defendants' costs, calculated on the indemnity basis, be paid out of the estate of each will-maker Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Brown v Guss (No 2) [2015] VSC 57 Chant v Curcuruto; Chant v Curcuruto [2021] NSWSC 751 Davies v Gregory (1873) LR 3 P&D 28 In Re Green [1969] WAR 67 In the Estate of Moyle: Moyle v Moyle (Supreme Court (NSW), Santow J, 18 June 1988, unrep) Kostic v Chaplin [2007] EWHC 2909 (Ch) Middlebrook v Middlebrook (1962) 36 ALJR 216 Mitchell v Gard (1863) 3 Sw & Tr 275; 164 ER 1280 Myers v Elman [1940] AC 282; [1939] 4 All ER 484 Nicholson v Knaggs [No 3 - Severance And Costs] [2009] VSC 328 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Pates v Craig (Estate of the late Joyce Jean Cole) (Supreme Court (NSW), Santow J, 5 September 1995, unrep) Perpetual Trustee Company Ltd v Baker [1999] NSWCA 244 Re Plant [1926] P 139 Spiers v English [1907] P 122 Starr v Miller; Starr v Miller (No 2) [2021] NSWSC 685 Sydney Markets Credit Services Co-operative Ltd v Taylor (No. 3) [2015] NSWSC 1236 Tombling v Universal Bulb Company [1951] 2 TLR 289 Tsaousis v Tsaousis (a minor, by his litigation guardian Tsaousis) [2019] VSC 511 Twist v Tye (1902) P 92 Texts Cited: G E Dal Pont, Law of Costs (4th ed, 2018, LexisNexis Butterworths) Miller, Probate Practice (Maxwell: 1900 Ed.) Category: Costs Parties: 2018/117875 – The Estate of Kenneth Charles Shepherd Brian Foster (aka Karen) Chant (first Plaintiff) Jeffrey Lee (second Plaintiff) Stephen Paul Curcuruto (first Defendant) Catherine Clare Curcuruto (second Defendant)