De Bruyne v Welstead [2022] NSWSC 886

Supreme Court New South Wales

Medium Neutral Citation: De Bruyne v Welstead [2022] NSWSC 886 Hearing dates: 28 June 2022 Date of orders: 5 July 2022 Decision date: 05 July 2022 Jurisdiction: Equity Before: Hallen J Decision: The Court: 1) Makes no order as to the Plaintiff's costs, to the intent that he bear his own costs of the proceedings. 2) Orders that the Plaintiff pay the Defendant's costs, calculated on the indemnity basis, of the proceedings. 3) Orders that the Defendant's costs be paid out of the share of the deceased's estate that passes to the Plaintiff under the 2002 Will of the deceased. Catchwords: COSTS – Probate proceedings – Settlement before determination – Contested probate application in which Plaintiff propounded copy undated document, which uncontested, but untested, expert evidence concluded did not bear authentic signatures – Application for grant to the Defendant of 2002 Will sought by her in Cross-Claim – No dispute about validity of 2002 Will other than to whom grant should be made – Shortly before commencement of first hearing, Plaintiff propounds another Will said to have been made by the deceased in 2008 – Expert evidence of each party, which remains untested, concluded that the 2008 document did not bear authentic signatures – The Plaintiff, shortly before final hearing, agrees to administration being granted of 2002 Will to independent administrator – Only outstanding issue for determination is how the costs of the proceedings should be borne – Application by Plaintiff that his costs, calculated on the ordinary basis, be paid out of the estate of the deceased – Defendant seeks order that the Plaintiff pay her costs calculated on the indemnity basis, with no order as to the Plaintiff's costs, of the proceedings – Under terms of 2002 Will, the deceased's residuary estate is divided equally between the parties. Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Succession Act 2006 (NSW), s 8 Supreme Court Rules 1970 (NSW), Part 78, rr 3, 44 Uniform Civil Procedure Rules 2005 (NSW) r 42 Cases Cited: Bolger v McDermott [2013] NSWSC 919 Bolger v McDermott (No 2) [2013] NSWSC 1330 Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Chisak v Presot (No 2) [2021] NSWSC 754 Clocchiatti v Pierobon; Estate of John Pierobon [2014] NSWSC 228 Commonwealth of Australia v Gretton [2008] NSWCA 117 Davies v Gregory (1873) LR 3 PD 28 Dehn v Honeman [2015] NSWSC 773 Di Carlo v Dubois [2002] QCA 225 Estate of Melville Gooley [2021] NSWSC 228 Fielder v Burgess [2014] SASC 98 Gawne v Gawne (1979) 2 NSWLR 449 Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562 Gray v Richards [No 2] (2014) 89 ALJR 113; [2014] HCA 47 Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd (2010) 182 FCR 84; [2010] FCAFC 5 Ibrahim v PERI Australia Pty Ltd [2013] NSWCA 328 Latoudis v Casey (1990) 170 CLR 534 Ling v Beyond Development Group Pty Ltd (No 2) [2022] NSWSC 817 Liverpool City Council v Estephan Estephan (Executor and Administrator of the Estate of the late Jocelyn Estephan) [2009] NSWCA 161 Mannix v Loumbos [2000] NSWCA 32 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 Oasis Hotel Ltd v Zurich Insurance Company (1981) 28 BCLR 230 ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270 Oshlack v Richmond River Council (1998) 193 CLR 72 Owners Strata Plan 73162 v Dyldam Developments Pty Ltd [2014] NSWSC 1789 Perpetual Trustee v Baker [1999] NSWCA 244 QBE Insurance (Australia) Limited v Hotchin [2013] NSWSC 315 Re Beverage Freight Services Pty Ltd [2020] NSWSC 509 Re Estate Law Hazel Ruby Grounds, Page v Sedawie [2005] NSWSC 1311 Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Re Minister for Immigration & Ethnic Affairs (Cth); Ex parte Lai Qin (1997) 186 CLR 662 Re Tsaousis [2019] VSC 511 Re Wilcox; Ex parte Venture Industries (No 2) (1996) 72 FCR 151; [1996] FCA 1942 Shorten v Shorten (No 2) [2003] NSWCA 60 Shovelar v Lane [2011] EWCA Civ 802 Starr v Miller (No 2) [2021] NSWSC 685 Sydney Markets Credit Services Co-operative Ltd v Taylor (No. 3) [2015] NSWSC 1236 Tsaprazis v Goldcrest Properties Pty Ltd [2000] NSWSC 765 Tu v Tu Estate of Tu [2008] NSWSC 458 Vector Corrosion Technologies Limited v E-Chem Technologies Ltd [2022] FCA 519 Wright v Apthorpe [2020] NSWCA 300 Texts Cited: Miller's Probate Practice (Maxwell: 1900 Ed.) Category: Costs Parties: Christopher James De Bruyne (Plaintiff) Michelle Welstead (Defendant) Representation: Counsel: M Pringle (Plaintiff) A Cheshire SC (Defendant)