BROWN AND ORS v AKERMAN [1995] NSWCA 60

BROWN v AKERMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and SHELLER JJA 22 May 1995, 22 May 1995

[1995] NSWCA 60

COSTS — probate — unsuccessful challenge by relatives — whether judge failed to consider reasonableness of enquiry — held: Should have been raised before orders perfected — summons dismissed.

WILLS, PROBATE AND ADMINISTRATION — probate — costs applicable principles — Re Eger, unreported, 4 February 1985 consd.

COSTS — probate suit — contested will — relatives contest will leaving property to charity — primary judge (Young J) dismisses suit — orders relatives to pay executor's costs — summons for leave to appeal against cost order only — held: (Dismissing the summons): (1) The requirement of leave to appeal against cost orders only is designed to uphold the primacy of the trial judge and that judge's knowledge of the detail of the case as well as to protect the Court of Appeal against unnecessary appeals on such matters; (2) Assuming that a consideration relevant to the exercise of the costs discretion is that, ordinarily, where the investigation of the document propounded as the will is reasonable the costs of an investigation shall be borne as they fall. In the present case no application was made to the primary judge to reconsider his order as, had it been made, evidence might have been called which was not available to the Court of Appeal, the case was not one suitable for the grant of leave; (3) Leave refused.

WILLS, PROBATE AND ADMINISTRATION — contested will — contest dismissed — costs order — applicable principles — whether testator was cause of litigation — whether it was reasonable to investigate the validity of the will — whether the primary judge (Young J) failed to take into consideration the reasonableness of the investigation of the validity of the will — held: Even assuming that the primary judge failed to consider this matter, the proper time to raise the point was before the perfection of the orders at the trial. Leave to appeal refused. Re Eger, unreported, Supreme Court of NSW (Powell J), 4 February 1985 considered. Supreme Court Act 1970, s101(2)(c).