Smith v Magi (No 2) [2011] NSWSC 272

Supreme Court New South Wales

Medium Neutral Citation: Smith v Magi (No 2) [2011] NSWSC 272 Hearing dates: 6 April 2011 Decision date: 20 April 2011 Jurisdiction: Equity Division Before: Davies J Decision: Order that probate in solemn form of the will of the Late Arthur Ernest Rice dated September 1999 be granted to the Plaintiff. (2) I refer the proceedings to the Registrar to complete the grant. (3) I order the Plaintiff's costs to be paid out of the estate on an indemnity basis. (4) I order that the Defendant's costs fixed in the sum of $35,000 be paid out of the estate of the deceased. Catchwords: SUCCESSION - wills, probate and administration - costs of probate action when Defendant agrees to orders sought at a late stage in the proceedings - whether the probate exceptions to the usual costs order apply - whether the proceedings were caused by the testator - small estate - order made of gross sum to the Defendant out of the estate. Legislation Cited: Civil Procedure Act 2005 Family Provision Act 1982 Cases Cited: Dawson v Peters (No. 2) [2007] NSWSC 1421 Grant v Binetter [2010] NSWSC 278 In the Estate of Moyle; Moyle v Moyle (unreported - Santow J - 18 June 1988) Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244 Phillpot v Olney [2004] NSWSC 592 Re Estate of Hodges (Deceased); Shorter v Hodges (1988) 14 NSWLR 698 Re Estate Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311 Shorten v Shorten (No 2) [2003] NSWCA 60 Smith v Magi [2011] NSWSC 198 Category: Principal judgment Parties: Jodie Smith (Plaintiff) Susan Gay Magi (Defendant Representation: Counsel: M Meek SC (Plaintiff) JJ Loofs (Defendant) Solicitors: Carroll & O'Dea (Plaintiff) Hartnett Lawyers (Defendant) File Number(s): 2010/9015 & 2010/26579