Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 4) [2018] NSWSC 1788

Supreme Court New South Wales

Medium Neutral Citation: Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 4) [2018] NSWSC 1788 Hearing dates: 16 November 2018 Date of orders: 27 November 2018 Decision date: 27 November 2018 Jurisdiction: Equity Before: Slattery J Decision: Order that the legal costs of the plaintiff Magdy Mekhail be paid out of the estate of the late Nadia Mekhail on the ordinary basis. Order that 85% of the legal costs of the plaintiff Youssef Mekail be paid out of the estate of the late Nadia Mekhail on the ordinary basis. Order that the defendant's costs of these proceedings be paid out of the estate on the indemnity basis. The defendant's Calderbank letters of May and November 2016 do not alter the incidence of costs in the proceedings. Existing injunctions over the South Strathfield property maintained pending appeal. Catchwords: COSTS – litigation concerning the testamentary capacity of the testator and whether at the time she made her will she was suffering from delusions or was being coerced – defendant successfully resists the plaintiffs' challenges to the will on the above grounds – probate of the will granted to the defendant – the plaintiffs, nephews of the testator, also brought proceedings for family provision out of the estate – plaintiffs' proceedings for family provision fail – findings in principal judgment provide a basis to argue that certain conduct of the deceased, and of the defendant, contributed to the present litigation – whether costs should follow the event – whether the unsuccessful plaintiffs' costs should be paid out of the estate or whether they should bear their own costs – the defendant served two Calderbank letters on the plaintiffs before the trial of the principal proceedings – whether or not it was unreasonable of the plaintiffs not to have accepted the Calderbank letters – whether existing injunctions over the South Strathfield property should continue pending the hearing of a foreshadowed appeal. Legislation Cited: Uniform Civil Procedure Rules 2005, rr 42.20, 42.21 Cases Cited: Becker v Public Trustee [2006] NSWSC 1164 Bagshaw v Pimm [1900] P. 148; [1900] 3 WLUK 45 Estate Paul Hodges (Deceased); Shorter v Hodges (1998) 14 NSWLR 698 Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail [2017] NSWSC 575 Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175 Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 3) [2018] NSWSC 1452 Milillo v Konnecke [2009] NSWCA 109 Mitchell v Guard (1863) 3 Sw & Tr 275 Petrovski v Nasev (No. 2) [2011] NSWSC 1474 Re Estate Late Ruby Grounds: Page v Sedawie [2005] NSWSC 1311 Statham v Shephard (No. 2) (1974) 23 FLR 244 Van Eeden v Henry; Henry v Van Eeden (2005) 62 NSWLR 301 Category: Costs Parties: In 2015/186751 Plaintiff: Magdy Mekhail Defendant: Georgette Hana