Cirillo v Cirillo; Estate CA Cirillo, deceased [2013] NSWSC 1797

Supreme Court New South Wales

Medium Neutral Citation: Cirillo v Cirillo; Estate CA Cirillo, deceased [2013] NSWSC 1797 Hearing dates: 25 November 2013and on written submissions in Chambers Decision date: 05 December 2013 Jurisdiction: Equity Division - Probate List Before: Lindsay J Decision: ORDER that the defendant pay the plaintiff's costs of the notice of motion filed 25 June 2013, assessed on an indemnity basis, with no right of indemnity against the assets of the estate. Catchwords: WILLS AND ESTATES - Probate - Caveat against grant - Motion that caveat cease to be in force - Withdrawal of caveat - Cost of motion Legislation Cited: - Cases Cited: - Texts Cited: - Category: Principal judgment Parties: Pasquale (known as Peter) Cirillo (Plaintiff) Domenico (known as Mick) Cirillo (Defendant) Antonio (known as Anthony) Cirillo (Beneficiary), by leave Representation: Counsel: R Kako (Plaintiff) MT Crimmins (Defendant) R Jefferis (Beneficiary) Solicitors: Hunt & Hunt (Plaintiff) Benjamin & Khoury (Defendant) Slater & Gordon (Beneficiary) File Number(s): 2012/0351568

Judgment 1The late Caterina Assunta Cirillo ("the deceased") died on 5 April 2012, leaving a Will dated 24 October 2005 and five adult children (three sons, two daughters) each ostensibly entitled to an equal share of her estate. 2In her Will the deceased named two of her sons (the plaintiff, known as "Peter"), and the defendant (known as "Mick") as her executors. 3There appears never to have been any dispute within the deceased's family as to the validity of the Will, notwithstanding differences about the appropriateness of its terms or due administration of the deceased's estate. 4Two of the deceased's children have made applications to the Court for family provision relief. A daughter, Maria, has applied for relief in proceedings numbered 2013/00102237. Her third son (known as "Anthony") has sought relief in proceedings numbered 2013/00269604. 5With the consent of his brothers, Anthony has sought, and has been granted, leave to be heard in respect of questions of costs arising on a notice of motion filed by the plaintiff on 25 June 2013. 6On 25 March 2013 the plaintiff filed a summons seeking a grant of probate of the Will, in common form, with a reservation of leave to the defendant to come in and obtain a grant. 7The summons was met with a requisition from the Court about the pendency of a caveat that had been lodged by the defendant, but evidently not served. 8Correspondence, and the filing of a further caveat by the defendant, ensued. 9On 25 June 2013 the plaintiff filed a notice of motion seeking: "1. An order that the then subsisting caveat of the defendant cease to be in force; and 2. An order that the defendant personally pay the plaintiff's costs of the proceedings". 10The motion came before a Registrar more than once and was the subject of a mediation before finding its way to me, as Probate List Judge, to determine questions of costs following upon a consensual order for dismissal of the plaintiff's motion. That order was consequent upon a decision made by the defendant (in temporal terms, at least, after the mediation) to withdraw his caveat. 11On the hearing of the costs questions, having regard to the state of the business listed before the Court that day, all parties who sought to be heard on those questions (namely, the plaintiff, the defendant and Anthony) consented to them being determined by me, in chambers, on written submissions. 12With undiminished enthusiasm, written submissions were filed over the course of the next few days. 13The plaintiff contends that the defendant should be ordered to pay his costs of the motion on an indemnity basis, with no right of indemnity against the assets of the estate. 14The defendant submits that the costs of the motion should be reserved (as between the parties), and (in the meantime) paid from the estate. 15Anthony contends that, no matter what conclusion is reached on the question of costs as between the plaintiff and the defendant, there is no basis for either of them to be allowed their costs from the estate. 16In dealing with these competing contentions it is neither necessary nor appropriate for me to go beyond the limited ambit of what presently falls for decision. 17In adopting that perspective, it seems plain enough that the caveats filed by the defendant were motivated, not by concerns about the validity of the deceased's Will, but about uncertainty as to the nature and value of estate property. There is force in the plaintiff's contention that there was no proper basis for the defendant's caveats, the principal effect of which appears to have been to delay a grant of probate and due administration of the deceased's estate. The defendant has not demonstrated an interest in the estate that would, relevantly, be affected if a grant of probate were to be made to the plaintiff. Nor has he applied for an order that the plaintiff, as his co-executor, be passed over upon a grant of probate. 18In these circumstances, the appropriate orders are as follows: (1)ORDER that the defendant pay the costs of the notice of motion filed by the plaintiff on 25 June 2013. (2)ORDER that those costs be assessed on the indemnity basis. (3)ORDER that the defendant not be entitled to be indemnified for his costs of the motion out of the estate of the deceased. (4)ORDER that no order be made as to the costs of Antonio (known as "Anthony") Cirillo referable to the plaintiff's motion. 19Such, if any, larger questions as may remain between members of the deceased's family relating to due administration of the estate, or any application for a grant of family provision relief, need not be the subject of consideration in this Judgment, and I do not enter upon any debates that may attend them.