Burge v Burge (No. 2) [2015] NSWSC 141

Supreme Court New South Wales

Medium Neutral Citation: Burge v Burge (No. 2) [2015] NSWSC 141 Hearing dates: On the papers Date of orders: 03 March 2015 Decision date: 03 March 2015 Jurisdiction: Equity Division Before: Darke J Decision: Order that plaintiff's costs on an indemnity basis and the defendant's costs on the ordinary basis be paid out of the estate. Catchwords: COSTS – departing from general rule that costs follow the event – probate litigation – litigation brought about by state of papers left by deceased – whether unreasonable for unsuccessful party to not accept Calderbank offer Legislation Cited: Succession Act 2006 (NSW) s 8 Cases Cited: Burge v Burge [2014] NSWSC 1772 Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 Lippe v Hedderwick [1922] HCA 44; (1922) 31 CLR 148 Shorten v Shorten (No 2) [2003] NSWCA 60 Vaughan v Hoskovich [2010] NSWSC 706 Category: Costs Parties: Anne Bell Burge (plaintiff) Conrad Michael Burge (defendant) Representation: Counsel: V F Kerr (plaintiff) P Blackburn-Hart SC (defendant)

Solicitors: Lane and Lane (plaintiff) Lane and O'Rourke (defendant) File Number(s): 2013/137871 Publication restriction: Nil

Judgment

Introduction 1. The question of costs remains to be determined in this matter. By a judgment delivered on 11 December 2014 ("the main judgment"), it was held that the Court was not satisfied that a certain informal testamentary document was intended to form the will of the late Rupert Burge (see Burge v Burge [2014] NSWSC 1772). Accordingly, the Amended Cross Claim brought by the defendant was ordered to be dismissed, and probate of a will dated 15 March 1983 was granted to the plaintiff. 2. In the course of the main judgment, I expressed the view that the litigation had essentially been brought about by the state of the papers left by Rupert Burge and that, in those circumstances, it was prima facie appropriate to order that the costs of all parties be borne out of the estate on an indemnity basis (see the main judgment at [67]). 3. The plaintiff has taken issue with that approach, and submits that the appropriate order for costs is that the defendant pays the plaintiff's costs up to 9 July 2014 on the ordinary basis, and after 9 July 2014 on an indemnity basis. There is no dispute that the plaintiff's costs should be paid out of the estate on an indemnity basis. 4. Directions were made for the filing of written submissions. The plaintiff filed written submissions of Counsel dated 5 February 2015, and the defendant filed written submissions of Senior Counsel dated 25 February 2015. 5. Neither party suggested that any further oral hearing was required, so the matter has been dealt with on the papers. The written submissions have been considered, and have been placed on the Court file.