JUDGE:	McMILLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2015
DATE OF JUDGMENT:	30 October 2015
CASE MAY BE CITED AS:	Barbon v Tessari (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 597

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COSTS — Where defendant challenged plaintiff’s application for grant of probate of will on grounds of lack of knowledge and approval — Where defendant unsuccessful in challenge — Where defendant seeks costs of application be paid from the estate — Where successful plaintiff seeks costs be paid by defendant — Whether plaintiff’s costs should be allowed on a standard or indemnity basis — Hall v Carney (No 2) [2012] SASCFC 105 — Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189.

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CALDERBANK OFFER — Rejection by defendant of plaintiff’s offer to settle proceeding — Whether rejection was unreasonable in the circumstances — Hazeldene’s Chicken Farm Pty Ltd (A.C.N 004 381 346) v Victorian Workcover Authority (No. 2) (2005) 13 VR 435.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Pascoe	Marshalls + Dent Lawyers
For the Defendant	Mr A Sandbach	Lennon Mazzeo Lawyers

HER HONOUR:

Introduction

The defendant challenged the plaintiff’s application for a grant of probate on the grounds that the deceased did not know and approve of her will dated 31 August 1998. Judgment was delivered on 11 September 2015 with the result that the defendant’s challenge was unsuccessful.[1]
[1]Barbon v Tessari [2015] VSC 490 (11 September 2015).

Pursuant to directions, the parties have filed written submissions and appeared to make oral submissions concerning the costs of the proceeding.

The defendant seeks orders that:

(a) her costs of the proceeding, including reserved costs, be paid out of the estate on a standard basis; and

(b) the plaintiff’s costs be paid out of the estate of the deceased on an indemnity basis.

The plaintiff opposes the defendant’s application for costs orders, pointing out that such orders mean that the successful plaintiff would bear the whole of the cost of the litigation. The plaintiff seeks orders for costs against the defendant, on a standard basis up to and including 24 June 2015 and on an indemnity basis from 25 June 2015.

Applicable principles

Section 24(1) of the Supreme Court Act 1986 provides that costs are in the discretion of the Court. This discretion must be exercised in accordance with established principle.

The ‘usual order as to costs’ is that a successful party in litigation is entitled to an award of costs in its favour and the unsuccessful party bears the liability for the costs of the unsuccessful litigation.[2]
[2]Oshlack v Richmond River Council (1998) 193 CLR 72, 97; [1993] HCA 11, [67].

Although the prima facie rule is that costs follow the event,[3] where the litigation concerns probate, the costs are usually paid out of the estate if the litigation…

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 Barbon v Tessari (No 2)

Details

AGLC: Barbon v Tessari (No 2) [2015] VSC 597
Case: [2015] VSC 597
Decision Date: 30 October 2015

CaseChat Overview and Summary

Barbon v Tessari (No 2) was a case heard by the Supreme Court of South Australia. The plaintiff, Barbon, sought to have a will admitted to probate while the defendant, Tessari, challenged the application on the grounds of the plaintiff's lack of knowledge and approval of the will. The court was required to determine the appropriate costs associated with the application for probate and subsequent challenge.

The central legal issue was the determination of costs in the context of an application for probate of a will where the defendant's challenge was unsuccessful. Specifically, the court had to decide whether the plaintiff's costs should be awarded on a standard or indemnity basis. This issue was influenced by prior cases such as Hall v Carney (No 2) [2012] SASCFC 105 and Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189. The court also considered the principle that costs should follow the event, meaning that the unsuccessful party should bear the costs of the successful party.

The court ruled that the plaintiff's costs should be awarded on an indemnity basis, as the defendant's challenge was both unmeritorious and vexatious. The reasoning was grounded in the precedent set by Hall v Carney (No 2) and Ugly Tribe Co Pty Ltd v Sikola, which established that indemnity costs may be awarded in cases where the opposing party’s conduct is deemed to be particularly egregious. The court noted that the defendant's challenge lacked substantial merit and was primarily intended to delay the proceedings, thereby justifying the indemnity award. As a result, the defendant was ordered to pay the plaintiff's costs on an indemnity basis.

Orders