Colegrove v Dullaghan (No 2) [2016] NSWSC 1236

Supreme Court New South Wales

Medium Neutral Citation: Colegrove v Dullaghan (No 2) [2016] NSWSC 1236 Hearing dates: In chambers on the papers Date of orders: 05 September 2016 Decision date: 05 September 2016 Jurisdiction: Equity Before: Robb J Decision: (1) Order that the defendant's costs of the proceedings and the cross claim up to 14 April 2016 be paid by the plaintiff out of the estate of the late Mr Peter Paskalis. (2) Order that the plaintiff's costs of the proceedings and the cross claim after 14 April 2016 be paid by the defendant on the ordinary basis. (3) Order that the exhibits and all documents produced on subpoena or notice to produce may be returned forthwith in accordance with the Rules. Catchwords: COSTS – plaintiff applied for order under s 8 of the Succession Act 2006 (NSW) – order granted – will handwritten by plaintiff and dictated by plaintiff's partner who was a solicitor – partner was sole witness –unusual circumstances – defendant initially justified in testing validity of plaintiff's claim – whether it was reasonable for the defendant to continue to contest the application after receiving the plaintiff's evidence without being at risk as to payment of costs – held it was no longer reasonable for the defendant to contest the application without risk of costs upon receiving the two independent witnesses' affidavits – whether indemnity costs should be allowed – plaintiff served Calderbank offer on the defendant – held Calderbank offer was not valid – held defendant's cost up to the date of the service of affidavit of second independent witness be paid out of the estate of the deceased – held plaintiff's cost of the proceedings thereafter be paid by the defendant on the ordinary basis Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Colegrove v Dullaghan [2016] NSWSC 1105 Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562 Mitchell v Gard (1863) 3 Sw & Tr 275 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Re Will of Jane (No 2) [2011] NSWSC 883 Shorten v Shorten (No 2) [2003] NSWCA 60 Category: Costs Parties: Jennifer Anne Colegrove (plaintiff) Toula Dullaghan (defendant) Representation: Counsel: L Ellison SC/B Narula (plaintiff) S Bell (defendant)