Supreme Court New South Wales Medium Neutral Citation: Estate Moran; Teasel v Hooke (No 2) [2015] NSWSC 88 Hearing dates: 16 February 2015 Date of orders: 16 February 2015 Decision date: 16 February 2015 Jurisdiction: Equity Division - Probate List Before: Lindsay J Decision: Confirmation of order for defendant to pay costs of unsuccessfully opposed application for admission of an informal will to probate Catchwords: SUCCESSION – Wills, Probate and Administration – Probate and letters of administration – Contested application for admission of informal will to probate - Costs – General principles – Costs ordinarily follow event, subject to established exceptions in probate cases – Costs remain in discretion of court – Where plaintiff and defendant, as only interested parties, engage in ordinary adversarial litigation, appropriate order may be for costs to follow event rather than be paid out of deceased estate. Legislation Cited: Civil Procedure Act 2005 NSW, s 98 Succession Act 2006 NSW, s 8 Uniform Civil Procedure Rules 2005 NSW, r 42.1 Cases Cited: Bannister v Perpetual Trustee Co Limited; Estate of Mascot Zita Blake deceased [2008] NSWSC 1283 at [29]-[30] Bell v Crewes [2011] NSWSC 1159 at [61] - [70]. Re Eger; Heilprin v Eger (4 February 1985, Powell J, unrep) Texts Cited: Mason and Handler, Succession Law and Practice (NSW), para [13,001] Category: Procedural and other rulings Parties: Plaintiff/Cross Defendant: Jessica Leigh Teasel Defendant/Cross Claimant: Alistair-John Mark Hooke Representation: Counsel: Plaintiff/Cross Defendant: J McIntosh Defendant/Cross Claimant: L Ellison Solicitors: Plaintiff/Cross Defendant: JNT Legal Defendant/Cross Claimant: Turnbull Hill Lawyers File Number(s): 2014/00148998 Judgment – ex tempore 1. Before the Court is a notice of motion filed by the defendant (on 2 February 2015), pursuant to a reservation of liberty to apply, for variation of costs orders provisionally made on 19 December 2014, upon publication of reasons for judgment ([2014] NSWSC 1839) that culminated in an informal Will being admitted to probate. 2. At the time of publishing the principal judgment I expressed a preliminary view that: (a) costs of the application (under the Succession Act 2006 NSW, s 8), for admission of the informal will to probate, should follow the event; and (b) to the extent that the plaintiff does not recover her costs of that application from the defendant, she should be entitled to recover them from the estate: [81]. 3. The defendant contends that his costs ought to be allowed out of the estate or, alternately, that there should be no order as to his costs. Implicit in his contentions is a broader contention that the costs of both parties should be paid out of the estate. 4. There is no dispute that costs are in the discretion of the Court. Section 98 of the Civil Procedure Act 2005 NSW so provides. 5. Nor is there any dispute that, prima facie, costs follow the event. The Uniform Civil Procedure Rules 2005 NSW, rule 42.1 so provides. 6. In probate proceedings two exceptions to this general rule (that costs follow the event) have come to be recognised, as Powell J instructs us in Re Eger; Heilprin v Eger (4 February 1985, unreported); those exceptions being: 1. where a testator has, or those interested in residue have, been the cause of the litigation, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate; 2. if the circumstances led reasonably to an investigation in regard to the document propounded, the costs may be left to be borne by those who respectively incurred them. See Mason and Handler, Succession Law and Practice (NSW), paragraph [13,001]. 1. In the course of argument the defendant also drew my attention to the judgment of Young CJ in Equity in Bannister v Perpetual Trustee Co Limited; Estate of Mascot Zita Blake deceased [2008] NSWSC 1283 at [29]-[30] and the judgment of White J in Bell v Crewes [2011] NSWSC 1159 at [61] - [70]. 2. Neither of those two cases does otherwise than to confirm the general practice of the Equity Division, which conforms to Powell J's description of it, save that the judgment of Justice Young deals specifically with an informal Will case. 3. I do not understand that the questions that may arise in an informal Will case mandate that a particular approach be taken in all such cases. Each case must be determined on its own facts. 4. Application of the general principles in this case require, inter alia, consideration of the relatively small size of the estate; the fact that the proceedings to date have, in substance, been proceedings between two contesting parties (the plaintiff and the defendant) alone; the clarity of intention on the part of the deceased in the informal Will read as a whole; and the motivation of the defendant (not improper but, nevertheless, not to be ignored) to advance his personal interests, vis-à-vis the plaintiff, in substantial litigation. In my assessment, the proceedings relating to whether the informal Will should be admitted to probate were proceedings that were litigated in a manner that, appropriately, is to be described as adversarial. 5. In circumstances in which the interests of the plaintiff and the defendant personally were engaged in the litigation, and each party had a fair opportunity to determine what the real questions in dispute were, or should be, there is no reason in principle to depart from the ordinary rule that, in adversarial litigation, costs follow the event. Adversarial litigation was fought, won and lost, with each party at risk as to costs, and no other interests than their own were engaged. 6. I accept that the form of the informal Will, and the circumstances leading to the death of the deceased, were perhaps unusual. However, the defendant had a fair opportunity to consider whether to contest the plaintiff's application, and made an informed choice to contest it. I see no reason why the costs of the contest should be notionally attributed to fault on the part of the testatrix, or a perceived need in the defendant to undertake a forensic investigation of the informal Will to the point of a hotly contested application. 7. In these circumstances, I propose to adhere to the costs orders I originally made, provisionally, on 19 December 2014. 8. Accordingly, I make the following orders: 1. Order that the defendant's notice of motion filed 2 February 2015 be dismissed. 2. Order that the defendant pay the plaintiff's costs of the motion, excluding the costs of preparation of the affidavit of Anthony Laarakkers affirmed 12 February 2015. 3. Order that the principal proceedings (for the purposes recorded in order 10 of the orders made on 19 December 2014) be listed before the Probate List Judge on 11 May 2015, for directions. 4. Reserve liberty to apply on three days notice. 5. Note that time within which the defendant is required (by the Succession Act 2006 NSW, s 58(2)) to bring such, if any, proceedings he proposes to bring for family provision relief expires on 10 April 2015. 6. Order that, in the event that the defendant files a summons seeking family provision relief, that summons be listed before the Probate List Judge for directions (in conjunction with these proceedings) on 11 May 2015. 1. I record that the principal proceedings are being adjourned today for a substantial period because there are ongoing matters of case management that might benefit from such an adjournment. 2. It is not necessary to mention them in detail. However, by the adjourned date, the defendant will have been required to make a decision as to: (a) whether or not he will apply for family provision relief; and (b) whether or not he will pursue an appeal from the orders made on 19 December 2014. 3. An object of the adjournment is to enable the parties to investigate whether clarity can be brought to the questions that remain in dispute. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 March 2015