Alexakis v Masters (No 3)

Case [2023] NSWSC 694


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…

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Alexakis v Masters (No 3) [2023] NSWSC 694
Case
[2023] NSWSC 694
Decision Date

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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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