Re Dowling; sub nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040

Supreme Court New South Wales

Medium Neutral Citation: Re Dowling; sub nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040 Hearing dates: 15 July 2013 Decision date: 08 August 2013 Jurisdiction: Equity Division - Probate List Before: Young AJ Decision: No order for costs made Catchwords: PROBATE - Default judgment cannot be sought in a suit for grant of probate in solemn form. COSTS - Consideration of costs of a probate suit where plaintiff main cause of the problem. Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Gray v Hart: Estate of Harris (No 2) [2012] NSWSC 1562 Beardsley v Beardsley [1899] 1 QB 746 Concha v Concha (1886) 11 App Cas 541 Re Langton [1964] P 163 Newell v Weeks (1814) 2 Phillim 224; 161 ER 1126 Young v Holloway [1895] P 87 Texts Cited: Williams, Mortimer and Sunnucks, Executors, Administration & Probate (20th ed, 2013) Sweet & Maxwell, London Category: Principal judgment Parties: NSW Trustee and Guardian (Plaintiff) Graham Edward Crossley (Defendant) Representation: Counsel: C Mantziaris (Plaintiff) M K Condon SC (Defendant) Solicitors: I V Knight, Crown Solicitor (Plaintiff) Graham Billing & Co (Orange) (Defendant) File Number(s): 2012/0035470 Publication restriction: None

Judgment 1YOUNG AJ: This judgment is about costs with respect to a probate suit that has now been resolved. 2Clifford Alexander Dowling ("the Testator") died on 30 July 2011 having first made and published his last will on 10 November 2009 ("the 2009 will"). 3On 23 June 2011, the Testator telephoned the plaintiff's office and gave instructions for the preparation of a new will. One Ms Evans of the plaintiff's Armidale office did so and on the same day she posted the draft. 4Ms Evans intended to post the draft to the Testator, but inadvertently posted it to the Orange Courthouse. (The Testator lived in Molong and he would normally have signed the will at the Orange Courthouse.) 5A follow up letter asking the Testator to make an appointment to sign the will also went to the Orange Courthouse. 6The evidence shows that in fact the Testator called at the Orange Courthouse on Thursday 21 July 2011 at 11 am, having made an appointment to sign his will. His nephew, the present defendant, drove him there. For some unexplained reason, the Testator returned to his nephew's car and said, "Sorry mate it looks like we will have to try again." 7Time ran out. The draft was never executed and the Testator died the following month. 8The plaintiff sought probate of the 2009 will. 9The residuary estate under the 2009 will passes as to one third to the defendant, one third to the Salvation Army and one third to the Fred Hollows Foundation. Under the 2011 draft it passes solely to the defendant. 10In October 2011, the defendant's solicitor wrote to the plaintiff endeavouring to find out what had happened to the Testator's new will. He received a formal reply. The letter said that the plaintiff's legal branch would respond "in due course". It never did. 11Hearing nothing, the solicitor protected the defendant's position by lodging, in February 2012, a caveat against probate being granted. When he notified the plaintiff of this, the solicitor requested that he be supplied with copies of all correspondence relating to the new will. No reply was received. The solicitor wrote a follow-up letter in May 2012, which was answered by saying that the matter was in the hands of the Crown Solicitor. 12On 1 August 2012, the Crown Solicitor wrote that no documents would be given to the defendant "given privacy considerations". 13We thus have the situation where, through the plaintiff's carelessness in sending out the draft new will, the Testator's intentions appear to have been completely frustrated. The beneficiary under the draft new will then attempted to find out whether the document had been executed, or its present status; for example, whether probate could be granted of it as an informal will. After nine months of seeking this information, during which time he was met with silence, he received a letter from a solicitor denying access to the information in light of "privacy considerations," whatever that means. 14The upshot of all this is that a probate suit becomes a contested suit. In due course the court process compels the plaintiff to give the information it should have given a year or so previously. When the defendant's advisors are at last told the true facts (in April/May 2013) they advised him that there was no case to oppose the grant of probate of the 2009 will. 15The matter appeared in the Registrar in Probate's list on many occasions. On 6 May 2013, consent orders were made that the time for filing a defence be extended to 23 May 2013 and that the matter be re-listed for directions on 3 June 2013. On 3 June 2013, the matter was adjourned for further directions on 17 June 2013. On 13 June 2013, the plaintiff was informed that the defendant would not be filing a defence. 16On 14 June 2013, the Crown Solicitor wrote to the defendant's solicitors seeking costs of the directions hearings of 3 and 17 June 2013. He also issued a Notice of Motion returnable on 17 June 2013 seeking default judgment under rule 16.3 of the Uniform Civil Procedure Rules 2005 and he sought costs of this as well. 17The Registrar referred the plaintiff's claims to me on 15 July 2013, when Mr C Mantziaris of counsel appeared for the plaintiff and Mr M K Condon SC appeared for the defendant. 18I should note that after reading the evidence and hearing counsel on 15 July 2013, I made the appropriate order granting probate in solemn form of the 2009 will. 19Mr Mantziaris strenuously argued the case for costs and Mr Condon strenuously opposed it. 20I felt it odd that the plaintiff would seek any costs, as not only had the careless way in which the draft will had been posted completely frustrated the testator's intentions, but about 18 months' delay had been occasioned by the plaintiff and its solicitor in not dealing with the defendant's solicitor's reasonable requests for information. I would have thought that the plaintiff would think that it should make sure that the beneficiaries were not penalised by the plaintiff's carelessness rather than have the effrontery of asking for costs. However, I will deal with the application for costs on the merits. 21As to the costs of 3 June 2013, there is a contest as to what happened before the Registrar. Mr Condon tells me that the Registrar declined the plaintiff's request to refer the matter to the judge dealing with the Probate List that day because of a defect in its material. Mr Mantziaris denies this. There is no transcript. I think l should consider seriously what senior counsel says. On that basis, there is no reason to reward the plaintiff with costs. 22The 17 June 2013 hearing was unnecessary as a directions hearing because the defendant, having at long last been given the proper information, had virtually withdrawn. It was, however, an occasion for considering the Notice of Motion for default judgment. In my view the Notice of Motion must have been dismissed, probably with costs. 23A suit to obtain probate in solemn form is litigation attendant to which is in the public interest in seeing that the last will of a free and capable testator is recognised and enforced. It is often said that, in a sense, the decision in such a suit operates in rem and binds all the world, see, e.g., Gray v Hart: Estate of Harris (No 2) [2012] NSWSC 1562 at [5] (White J). However, it should be noted that this statement is true only in a broad sense: see Williams, Mortimer and Sunnucks, Executors, Administration & Probate (20th ed, 2013) Sweet & Maxwell, London at [11.05]; Re Langton [1964] P 163 at 175 per Danckwarts LJ. 24As to the decree being binding on all the world, see Concha v Concha (1886) 11 App Cas 541 at 551-552 and 571-572 and Beardsley v Beardsley [1899] 1 QB 746. Despite the broad general statement of the rule, a decree in solemn form will not bind a non-party to the suit unless he or she is conusant of the proceedings, that is that he or she had notice of the proceedings and had a right to intervene, Newell v Weeks (1814) 2 Phillim 224; 161 ER; Young v Holloway [1985] P 87. 25Orders are only made in such a suit after the judge has received evidence tending to satisfy him or her that such a decision "binding the whole world" should be made. There is no room for any concept of default judgment. 26Thus, had the Notice of Motion run, the probabilities are that it would have been dismissed with costs. There is, thus, no basis for awarding the plaintiff any cost with respect to it. 27Thus, subject to what I said in [21] above there should be no order for costs in the proceedings.