DAWSON v PETERS & 3 ORS (No. 2) [2007] NSWSC 1421

New South Wales Supreme Court

CITATION : DAWSON v PETERS & 3 ORS (No. 2) [2007] NSWSC 1421

HEARING DATE(S) : 04/12/2007

JUDGMENT DATE : 7 December 2007

JURISDICTION : EQUITY

JUDGMENT OF : Bryson AJ at 1

DECISION : Order that the costs of the first and second defendants be paid out of the estate of the testator.

CATCHWORDS : COSTS - probate litigation [2007] NSWSC 1329 - contest between different defendants on whether informal document should be admitted to probate as codicil to formal will - successful defendants claimed order for costs against unsuccessful defendant - costs of successful defendants out of estate, unsuccessful defendant left to pay own costs.

LEGISLATION CITED : Civil Procedure Act 2005 s 98

Dawson v Peters [2007] NSWSC 1329 CASES CITED : In Re Hodges, Shorter v Hodges (1988) 14 NSW LR 698 Shorten v Shorten (No 2) [2003] NSWCA 60

Frederick Brian Dawson - Plaintiff PARTIES : Joan Marie Peters and Gwen Cameron - First and Second Defendants Narelle Godbee - Third Defendant

FILE NUMBER(S) : SC 102918/2006

COUNSEL : R. Reitano - 1st & 2nd Dft M. Lawson - 3rd Dft

SOLICITORS : Bradfield Mills - 1st & 2nd Defendants Atkinson Vinden Heazlewoods - 3rd Dft

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

BRYSON AJ

7 December 2007

102918/06 - FREDERICK BRIAN DAWSON v JOAN MARIE PETERS & 3 ORS (NO.2) THE ESTATE OF WILFRED NICHOLLS JUDGMENT 1 BRYSON AJ: These reasons deal with costs in Dawson v Peters [2007] NSWSC 1329, and should be read with the findings I then made. When I gave judgment on 26 November 2007 I made an order for Mr Dawson the plaintiff to be paid his costs out of the estate. On 4 December I heard argument by counsel for the defendants on orders for costs relating to the first and second defendants, and to the third defendant. 2 Civil Procedure Act 2005 s 98 gives the Court full power to determine costs questions but subject to Rules of Court. UCPR 42.1 provides: Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other orders should be made as to the whole or any part of the costs. 3 This rule makes an order that costs follow the event the ordinary course, unless displaced by a discretionary decision. 4 Mr Dawson the executor of the formal will applied in common form for probate of the formal will and also applied for a declaratory order establishing that the informal document constituted an amendment to the formal will, meaning in effect that it should be admitted to probate as a codicil. He did not apply for probate of the informal document; he only applied for a declaratory order; this claim was dismissed and in effect the declaratory order was refused. Persons who expressed interest in upholding the informal document or in establishing that it was invalid were joined as defendants, and the contest at the hearing was between defendants appointed to represent these groups. According to the formal record no defendant made a claim so it is difficult to apply a rule that costs follow the event; but the substance is clear, that the third defendant Mrs Godbee maintained that the informal document was valid, and she failed, while the first and second defendants Mrs Peters and Mrs Cameron maintained that it was invalid and succeeded. 5 For a long time considerations special to probate litigation have been regarded when deciding costs of litigation relating to disputed wills, and the Civil Procedure Act 2005 and UCPR 42.1 have not altered the significance of the considerations earlier brought to bear on discretionary decisions. 6 A statement of the approach taken in probate was made In Re Hodges, Shorter v Hodges (1988) 14 NSW LR 698 at 709 by Powell J. Costs are, of course, in the discretion of the court, but that discretion, being a judicial, and not an unfettered, one must be exercised in accordance with established principle. The general principle to be applied in adversary litigation is that costs follow the event, those costs being taxed on a party and party basis. However, over the years, a number of exceptions to this general rule have come to be recognised. In the field of probate litigation, two such exceptions have come to be recognised, they being: 1. where the testator has, or those interested in residue have, been the cause of the litigation, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate;