Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw (No. 2) [2022] NSWSC 1484

Supreme Court New South Wales

Medium Neutral Citation: Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw (No. 2) [2022] NSWSC 1484 Hearing dates: 24 October 2022 Date of orders: 1 November 2022 Decision date: 01 November 2022 Jurisdiction: Equity Before: Slattery J Decision: Order that the plaintiff's and the defendant's costs be paid out of the estate up to 1 April 2021, the defendant's costs being on the ordinary basis. The defendant shall pay the plaintiff's costs of the proceedings on and from 10 August 2021 on the ordinary basis. The defendant will bear his own costs between 1 April and 10 August 2021. Order that the plaintiff's costs of the proceedings, including for any costs not otherwise recovered from the defendant be paid out of the estate of the deceased on the indemnity basis. Catchwords: COSTS – deceased estate – contest as to the probate of a will – the plaintiff propounds a 2005 will and a 2009 codicil thereto – defendant propounds a testamentary instrument executed in January 2020 – issues as to the testator's capacity at the time of making the January 2020 testamentary instrument – issues of knowledge and approval of the January 2020 testamentary instrument – proceedings heard in February 2022 – plaintiff offers on 31 March 2021 to compromise the proceedings on the basis that probate of the 2005 will and the 2009 codicil be granted in solemn form to the plaintiff – the defendant cross-claims for probate of a January 2020 testamentary instrument – court's final judgment grants probate of the 2005 will and the 2009 codicil to the plaintiff – proper order as to costs in probate proceedings – whether the outcome of the proceedings was no less favourable to the defendant/cross-claimant in the offer of compromise – whether it was reasonable for the defendant not to accept the offer of compromise. Legislation Cited: Uniform Civil Procedure Rules 2005, rr 20.26, 31.50, 31.52, 42.14 Cases Cited: BE Australia WD Pty Ltd (subject to a Deed of Company Arrangement) v Sutton [2011] NSWCA 414 Benette v Cohen (No. 2) [2009] NSWCA 162 Brady v Mikan (No 2) [2022] NSWSC 1320 Colegrove v Dullaghan (No 2) [2016] NSWSC 1236 Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279 Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562 In the Estate of Moyle; Moyle v Moyle (Supreme Court (NSW), 18 June 1998, unreported) In the Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak (No 2) [2015] NSWSC 1317 King v Hudson [2009] NSWSC 1500 Leichardt Municipal Council v Green [2004] NSWCA 341 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 Mitchell v Gard (1863) 3 Sw & Tr 275 Owners of Strata plan 58577 v Banmore Development Finance Pty Ltd [2006] NSWSC 174 Pates v Craig; Estate of the late Joyce Jean Cole (Supreme Court (NSW), Santow J, 5 September 1995, unreported) Perpetual Trustee Company Ltd v Baker [1999] NSWCA 244 Petrovski v Nasev; The Estate of Janakievska (No 2) [2011] NSWSC 1474 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Shorten v Shorten (No 2) [2003] NSWCA 60 Starr v Miller (No 2) [2021] NSWSC 685 Walker v Harwood [2017] NSWCA 228 Category: Costs Parties: Plaintiff: Zina Dybac Defendant: Basil Czerwaniw Estate of the late Apolonia Czerwaniw, late of Schofields Representation: Counsel: Plaintiff: N. Kirby Defendant: M. Evans