Refalo v Gatt (No 2) [2021] NSWSC 1677

Supreme Court New South Wales

Medium Neutral Citation: Refalo v Gatt (No 2) [2021] NSWSC 1677 Hearing dates: On the papers Decision date: 20 December 2021 Jurisdiction: Equity Before: Robb J Decision: As to the issue of the date for the valuation of the subject property, see [55]-[57] below. As to the issue of the costs of the determination of prayers 1 to 3 of the statement of claim, see [75] below. As to the costs of discontinuance see [96]-[97] below. Catchwords: SUCCESSION — Construction — Where wills silent as to date of valuation of property in estate subject to testamentary option exercisable by beneficiaries — Where executors had not implemented the process for determination of value required by the wills — Where the parties had nonetheless implemented part of the valuation process — Where the Court has suggested a pragmatic approach to the determination of the valuation date resulting from the parties' conduct — Where no point of principle COSTS — Where plaintiffs and defendants are both beneficiaries and executors under wills — Where the proceedings were required to determine the proper construction of the wills in circumstances where that issue was uncertain — Where the Court has ordered that the costs incurred by the parties are proper testamentary expenses— Where the Court has ordered that the costs of all parties be paid out of the estates of the testators on the indemnity basis COSTS — Where plaintiffs propose to discontinue part of proceedings — Consideration of the principles Legislation Cited: Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: In re Tennant; Mortlock v Hawker (1942) 65 CLR 473 Murdocca v Murdocca (No 2) [2002] NSWSC 505 Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 625; [1997] HCA 6 Re Tankard [1942] Ch 69 Re the Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Refalo v Gatt [2021] NSWSC 926 Shorten v Shorten (No 2) [2003] NSWCA 60 Warton v Yeo [2015] NSWCA 115 Category: Consequential orders Parties: Joseph Refalo (first plaintiff) Sonia Margaret Attard (second plaintiff) Joyce Doris Bugeja (third plaintiff) Elizabeth Josephine Gatt (first defendant) Mary Sultana (second defendant) Kitty Cassar (third defendant) Frances Chircop (fourth defendant) Representation: Counsel: M Meek SC and P J Muscat (first to third plaintiffs) J Needham SC and T Catanzariti (first to fourth defendants)