Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer (No. 2) [2013] NSWSC 823

Supreme Court New South Wales

Medium Neutral Citation: Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer (No. 2) [2013] NSWSC 823 Hearing dates: 14 June 2013 Decision date: 21 June 2013 Jurisdiction: Equity Division Before: Slattery J Decision: Plaintiff not entitled to proceed to take probate. Plaintiff to personally pay the defendant's costs on indemnity basis and not to have his costs paid out of the estate. Dismiss the defendant's application for a specified gross sum cost order instead of assessed costs. Catchwords: SUCCESSION - wills, probate and administration - plaintiff propounded a codicil knowing that the signature on it was not the testator's - whether the plaintiff should be passed over as executor of his brother's will - circumstances in which the Court may pass over a named executor discussed. COSTS - plaintiff failed to establish that the codicil he propounded was properly executed - whether the plaintiff should pay the defendant's costs of the proceedings - part of the trial occupied by irrelevant matters raised by the defendant - whether costs on indemnity basis appropriate - additional costs incurred because the plaintiff's conduct - whether the plaintiff's and/or the defendant's costs may be paid out of the estate - principle that the executor's costs may be paid from the estate if his conduct was honest but mistaken discussed. COSTS - whether a specified gross sum order under Civil Procedure Act 2005 s 98(4)(c) appropriate - principles of making such an order discussed - cost assessment necessary to unpick the costs on irrelevant issues raised by the defendant at the trial. Legislation Cited: Civil Procedure Act 2005 s 98(4) Probate and Administration Act 1898 s 74 Succession Act 2006 (NSW) s 6 Uniform Civil Procedure Rules 2005 r 42.1 Cases Cited: Australasian Performing Rights Assoc Ltd v Marlin [1999] FCA 1006 Beach Petroleum NL & Claremont Petroleum NL v Johnson (1995) 57 FCR 119 Bowler v Bowler, Supreme Court of NSW (7 June 1990) Young J Burnside v Mulgrew [2007] NSWSC 550 Commonwealth Bank of Australia v Saleh [2007] NSWSC 990 Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354 Footes v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 Hadid v Lenfest Communications Inc [2000] FCA 628 Harrison v Schipp [2002] NSWCA 213 Hobartville Stud Pty Limited v Union Insurance Co (1991) 25 NSWLR 358 Leichardt Municipal Council v Green [2004] NSWCA 341 Monty Financial Services Limited v Delmo (1996) 1 VR 65 National Trustees Executors and Agency Co v Barnes (1941) 64 CLR 268 Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer [2013] NSWSC 412 Ohn v Walton (1995) 36 NSWLR 77 Perpetual Trustees Company v Baker [1999] NSWCA 244 Re Hunter (1932) NZLR 911 The Uniting Church in Australia Property Trust (NSW) & Anor v John Kerry Millane [2002] NSWSC 1070 Upton v Downie [2007] NSWSC 1281 Category: Consequential orders Parties: Plaintiff/Cross Defendant:- Neil Ronald Telfer as executor of the estate of the late Lyall Telfer Defendant/Cross Claimant:- Carolyn Telfer Representation: Counsel: Plaintiff/Cross Defendant:- M. K. Rollinson Defendant/Cross Claimant:- C. Carroll Solicitors: Plaintiff/Cross Defendant:- Benjamin Barrak, Barrak Lawyers Defendant/Cross Claimant:- Denis Williams, Whitehead Cooper Williams File Number(s): 2011/283114 Publication restriction: No