Heffernan v Innes & Anor (No 2) [2021] NSWSC 1187

Supreme Court New South Wales

Medium Neutral Citation: Heffernan v Innes & Anor (No 2) [2021] NSWSC 1187 Hearing dates: In Chambers on the papers Date of orders: 17 September 2021 Decision date: 17 September 2021 Jurisdiction: Equity Before: Hallen J Decision: Refer to paragraph [174] Catchwords: COSTS – Probate proceedings - Where Court finds in favour of an informal document propounded by the Plaintiff; rejected the defence of lack of testamentary capacity; and dismissed the Cross-Claim of the Defendants which alleged that there was a will made by the deceased which was not found and the original, a copy, or even a draft, of which no one had seen – Defendants had also asserted that the unfound will was removed by the father of the Plaintiff, after the deceased's death, from the deceased's home – Serious allegation of what may have amounted to criminal conduct under s 135 Crimes Act 1900 (NSW) made but not proved – Whether Defendants maintained defences and made the serious allegation which had no reasonable prospects of success COSTS - Whether there should be exception to general rule that costs follow the event bearing in mind nature of the proceedings or otherwise – Consideration given to the nature of the proceedings COSTS - Offers made by the Plaintiff – Whether each a Calderbank offer – Each offer not accepted by the Defendants, and the Plaintiff obtains an order on the claims no less favourable to her than the terms of the offer - Relevance of offer made if it was not a Calderbank offer on question of costs Plaintiff contends that the Defendants should pay her costs of the proceedings calculated on the indemnity basis – Defendants orally submit that their costs should be paid out of the estate of the deceased COSTS - How costs should be borne and whether the circumstances warrant the exercise of the Court's discretion to make an indemnity costs order in favour of the Plaintiff. Legislation Cited: Civil Procedure Act 2005 (NSW) s 3 Crimes Act 1900 (NSW) s 135 Evidence Act 1995 (NSW) s 131 Legal Profession Uniform Law Application Act 2014 (NSW) ss 74-80 Uniform Civil Procedure Rules 2005 (NSW) r 20.26, 42.2 Cases Cited: Ausino International Pty Ltd v Apex Sports Pty Ltd [2006] NSWSC 1119 Bassett v Cameron (No 2) [2021] NSWSC 419 Bouras v Grandelis (2005) 65 NSWLR 214; [2005] NSWCA 463 Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343 Calderbank v Calderbank [1975] 3 WLR 586; [1975] 3 All ER 333 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Chant v Curcuruto; Chant v Curcuruto (No 2) [2021] NSWSC 882 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Commissioner of Taxation v Ross (No 2) [2021] FCA 1088 Commonwealth of Australia v Gretton [2008] NSWCA 117 Coregas Pty Limited v Penford Australia Pty Limited (No 2) [2013] NSWCA 11 Crump & Ors v Equine Nutrition Systems Pty Ltd trading as Horsepower & Anor (No 2) [2007] NSWSC 25 Davies v Gregory (1873) LR 3 P&D 28 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 EMI Records Limited v Ian Cameron Wallace Ltd [1983] 1 Ch 59 Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 Evans v Braddock (No 2) [2015] NSWSC 518 Girardi as trustee for The Superannuation Fund – Greengate Investments v Duncum [2021] NSWSC 1138 Goodwin v Avison & Ors [2021] EWHC 2356 Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562 Greer v Greer [2021] QCA 174 Grynberg v Muller [2002] NSWSC 350 Hamod v New South Wales [2002] FCAFC 97; 188 ALR 659 Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 His Eminence Metropolitan Petar, Diocesan Bishop of The Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 Hunter v Roberts (No 2) [2019] NSWCA 235 Jones v Bradley (No. 2) [2003] NSWCA 258 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Leichhardt Municipal Council v Green [2004] NSWCA 341 Liverpool City Council v Estephan Estephan (Executor and Administrator of the Estate of the late Jocelyn Estephan) [2009] NSWCA 161 Luxmore Pty Ltd v Hydedale Pty Ltd (2008) 20 VR 481; [2008] VSCA 212 Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (No 2) [2017] FCAFC 116 Mr Rental Australia Pty Ltd v IRD Services Pty Ltd (No 2) [2016] NSWSC 918 Munday v Bowman (1997) FLC 92-784 Noon v Bondi Beach Astra Retirement Village Pty Ltd (No 2) [2010] NSWCA 285 Old v McInnes and Hodgkinson [2011] NSWCA 410 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Perpetual Trustee v Baker [1999] NSWCA 244 Re Wilcox; Ex parte Venture Industries (No 2) [1996] FCA 1942; (1996) 72 FCR 151 South Eastern Sydney Area Health Service v King [2006] NSWCA 2 Spiers v English [1907] P 122 Sze Tu v Lowe (No 2) [2015] NSWCA 91 The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; (2006) 67 NSWLR 706 Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353 Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 194 Tu v Tu Estate of Tu [2008] NSWSC 458 Walker v Wilsher (1889) 23 QBD 335 Walsh v Walsh (No 2) [2013] NSWSC 1281 Wharton v Bancroft [2012] EWHC 91 (Ch) Wright v Apthorpe [2020] NSWCA 300 Ying v Song [2011] NSWSC 618 Texts Cited: Dyson Heydon, Cross on Evidence (12th ed, 2020, LexisNexis Australia) G E Dal Pont, Law of Costs (4th ed, 2018, LexisNexis Butterworths) William E Miller, Probate Practice (1900, Maxwell) Category: Costs Parties: Lisa Louise Heffernan (Plaintiff/Cross-Defendant)