Kemp v Findlay (No 2) [2024] NSWSC 1157

Supreme Court New South Wales

Medium Neutral Citation: Kemp v Findlay (No 2) [2024] NSWSC 1157 Hearing dates: On the papers; last submissions 16 August 2024 Date of orders: 13 September 2024 Decision date: 13 September 2024 Jurisdiction: Equity - Expedition List Before: Rees J Decision: Vary costs order; plaintiff to pay 75% of defendant's costs Catchwords: COSTS – informal will – whether testator's failure to execute informal will "caused" the litigation – principles at [7]-[13] – overriding purpose of Civil Procedure Act informs assessment of reasonableness – plaintiff told by testator that he had changed his will – plaintiff had reason to think testator no longer wished to leave his estate to her, given separation and family law settlement – plaintiff provided with evidence in support of informal will before proceedings commenced – plaintiff sought to admit earlier will to probate – ran expansive case in adversarial manner for financial gain – plaintiff's conduct unreasonable. Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56(1), 98 Succession Act 2006 (NSW), s 8(2)(a) Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Estate Moran; Teasel v Hooke [2014] NSWSC 1839 Estate Moran; Teasel v Hooke (No 2) [2015] NSWSC 88 Etherton v Mitchelmore [2024] NSWSC 170 Fielder v Burgess [2014] SASC 98 Hall v Carney (No 2) [2012] SASCFC 105 Kemp v Findlay [2024] NSWSC 902 Kostic v Chaplin [2007] EWHC 2909 Ch Mitchell v Gard (1863) 3 SW & TR 275 Petrovski v Nasev; The Estate of Janakievska (No 2) [2011] NSWSC 1474 Public Trustee v New South Wales Cancer Council [2002] NSWSC 220 Re Estate of Paul Francis Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Re Estate of the Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311 Shorten v Shorten (No 2) [2003] NSWCA 60 Category: Costs Parties: Elizabeth Anne Kemp (Plaintiff) David William Findlay (Defendant) Representation: Counsel: MK Condon SC / PG Bolster (Plaintiff) L Ellison SC (Defendant) Solicitors: Keypoint Law (Plaintiff) L Rundle & Co Solicitors (Defendant) File Number(s): 2024/108017