Wehbe v Giotopoulos (No 2) [2023] NSWSC 934

Supreme Court New South Wales

Medium Neutral Citation: Wehbe v Giotopoulos (No 2) [2023] NSWSC 934 Hearing dates: On the papers Date of orders: 10 August 2023 Decision date: 10 August 2023 Jurisdiction: Equity Before: Darke J Decision: Order made that plaintiffs pay the defendant's costs, including on an indemnity basis from 8 June 2023. Catchwords: COSTS – contested probate – offers of compromise – Calderbank offers – where the defendant successfully challenged will propounded by the plaintiffs – where the defendant had unsuccessfully raised the issue of undue influence – where the plaintiffs rejected a Calderbank offer, and an offer of compromise made under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 20.26 – whether there is any reason to depart from the usual order that costs follow the event – whether a costs order should be made to reflect the defendant's failure to establish undue influence – held that there is no reason to depart from the usual order – the defendant obtained a judgment no less favourable than the terms of the offer of compromise – held that defendant is entitled to indemnity costs against the plaintiffs pursuant to UCPR r 42.15A(2) and an indemnity out of the deceased estate to the extent that her costs are not recovered from the plaintiffs Legislation Cited: Supreme Court Rules 1970 (NSW), Pt 78 r 57 Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A Cases Cited: Alexakis v Masters (No 3) [2023] NSWSC 694 Bear v Bear; Jordan v Bear [2022] NSWSC 1687 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Calderbank v Calderbank [1976] Fam 93 Estate Cockell; Cole v Paisley [2016] NSWSC 349 Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298 Mautray Pty Ltd v Pillemer Pty Ltd [2022] NSWSC 1315 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Nock v Austin (1918) 25 CLR 519 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) (2011) 288 ALR 385; [2011] NSWCA 256 Walker v Harwood [2017] NSWCA 228 Wehbe v Giotopoulos [2023] NSWSC 827 Category: Costs Parties: George Paul Wehbe (First Plaintiff/First Cross-Defendant– self represented and on behalf of the Second Plaintiff/Second Cross-Defendant) Simon Charbel Wehbe (Second Plaintiff/Second Cross-Defendant) Marcha Giotopoulos (Defendant/Cross-Claimant) Representation: Counsel: Mr J E F Brown (Defendant/Cross-Claimant)