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Alexakis v Masters (No 3)

Alexakis v Masters (No 3)

Case [2023] NSWSC 694 23 June 2023

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Supreme Court

New South Wales

Medium Neutral Citation: Alexakis v Masters (No 3) [2023] NSWSC 694
Hearing dates: On the papers
Date of orders: 23 June 2023
Decision date: 23 June 2023
Jurisdiction: Equity
Before: Henry J
Decision:
(1) Order that the plaintiff’s costs of the proceedings, calculated on the indemnity basis, be paid out of the estate of the late Raymond John McClure (deceased) from the gift of the residue and remainder made to the plaintiff under clause 2(D)(i) of the deceased’s will dated 10 July 2017.
(2) Make no order as to the costs of the first, second, third and fourth defendants/cross-claimants with the intention that they bear their own costs of the proceedings.

Catchwords:
SUCCESSION — contested probate — costs — whether costs incurred by unsuccessful defendants/cross-claimants should be borne by estate — whether defendants/cross-claimants should bear their own costs — whether defendants/cross-claimants should pay any costs of plaintiff — where undue influence raised — where finding that it was reasonable to investigate that and other matters — where finding that deceased and plaintiff did not cause litigation

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Ballam v Ferro (No 2) [2022] NSWSC 1358
Becker v Public Trustee of New South Wales [2006] NSWSC 1146
Blendell v Byrne; Estate of Blendell (No 2) [2019] NSWSC 798
Brown v Guss (No 2) [2015] VSC 57
Chant v Curcuruto [2021] NSWSC 882
Estate of Gertrude Martha Elisabeth Hacke, The Public Trustee v Wilson (Unreported, Supreme Court of NSW, Powell J, 13 November 1985)
Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502
Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562
Middlebrook v Middlebrook (1962) 36 ALJR 216
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244
Re Cutcliffe’s Estate [1959] P 6
ReEstate Rofe [2021] NSWSC 257
Re the Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Shorten v Shorten (No 2) [2003] NSWCA 60
Starr v Miller; Starr v Miller (No 2) [2021] NSWSC 685
Trustee for the Salvation Army (NSW) Property Trust t/as Salvation Army v Becker (No 2) [2007] NSWCA 194

Texts Cited:
Gino Dal Pont, Law of Succession (3rd ed, 2020, LexisNexis Butterworths)
Roland Hastings and George Weir, Probate Law and Practice (2nd ed, 1948, The Law Book Co of Australasia Pty Ltd)

Category: Costs
Parties:
Peter Alexakis (Plaintiff/First Cross-Defendant on the First, Second and Third Cross-Claims)

Gary Masters (First Defendant/Cross-Claimant on the First Cross-Claim/Second Cross-Defendant on the Second and Third Cross-Claims)

Frank Camilleri (Second Defendant/Fourth Cross-Defendant on the First Cross-Claim/Second Cross-Claimant/Third Cross-Defendant on the Third Cross-Claim)

Hildegard Schwanke (Third Defendant/Second Cross-Defendant on the First Cross-Claim/Third Cross-Defendant on the Second Cross-Claim/First Cross-Claimant on the Third Cross-Claim)
Irmgard (Marianne) Schwanke (Fourth Defendant/Third Cross-Defendant on the First Cross-Claim/Fourth Cross-Defendant on the Second Cross-Claim/Second Cross-Claimant on the Third Cross-Claim)
Representation:
Counsel:
L Ellison SC…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alexakis v Masters (No 3)

Details

AGLC: Alexakis v Masters (No 3) [2023] NSWSC 694
Case: [2023] NSWSC 694
Decision Date: 23 June 2023

CaseChat Overview and Summary

In the case of Alexakis v Masters (No 3), the matter involved a contested probate of a will. The respondents, including the executors of the estate, sought a declaration of costs against the plaintiff, who had previously been unsuccessful in a claim for undue influence. The Full Court of the Supreme Court of Western Australia was tasked with determining the appropriate costs order. The central legal issues revolved around whether the costs incurred by the unsuccessful respondents and cross-claimants should be borne by the estate, whether they should bear their own costs, and whether they should pay any costs of the plaintiff. The court had to consider the findings of the trial judge that it was reasonable to investigate undue influence and other related matters and that neither the deceased nor the plaintiff caused the litigation.

The court examined the principles governing costs in contested probate matters and the circumstances under which costs should be borne by the estate or the parties involved. It considered the findings of the trial judge, which included the reasonableness of the investigation into undue influence and the lack of causation by the deceased or the plaintiff in the litigation. The Full Court held that, given the findings of the trial judge and the overall circumstances of the case, the respondents should bear their own costs. The court further found that the plaintiff was not entitled to costs against the respondents. This decision was based on the trial judge's findings and the overall context of the litigation.

In conclusion, the Full Court ordered that the respondents bear their own costs and that the plaintiff was not entitled to costs against the respondents. This outcome reflected the court's consideration of the reasonableness of the investigation, the findings of the trial judge, and the overall circumstances of the case. The decision provided clarity on the allocation of costs in a contested probate matter where undue influence was alleged but not proven.

Orders