Barbon v Tessari (No 2)
[2015] VSC 597
•30 October 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROBATE LIST
S PRB 2014 01521
| HARRY BARBON | Plaintiff |
| v | |
| LUCIA TESSARI | Defendant |
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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 has been caused, or contributed to, by the way in which a testator made his or her testamentary intentions known or alternatively by the conduct of the residuary beneficiaries.[4] Where the testator is not the cause of the litigation, but circumstances exist that reasonably call for an investigation, there is either no order as to the unsuccessful party’s costs or costs are paid out of the estate.[5] For there to be reasonable grounds that call for an investigation, it must be established that when proceedings were commenced, all proper steps were taken to inform the challenger as to the facts of the case and, having done so, the challenger has been led reasonably to the bona fide belief that there was good ground for impeaching a will.[6] If there is no reasonable cause for investigation, that is, if the unsuccessful party has not acted reasonably, then the costs will usually follow the event.[7]
[3]See Twist v. Tye [1902] P 92; Spiers v. English, [1907] P 122; Middlebrook v Middlebrook (1962) 36 ALJR 216, 217 per Dixon CJ; Re Green [1969] WAR 67, 83.
[4]Hall v Carney(No 2) [2012] SASCFC 105 (17 September 2012) [8]-[12] (Gray J). See also Reginald Alfred Becker v Public Trustee of New South Wales [2006] NSWSC 1146 (2 November 2006) [12]-[15]; Murdocca v Murdocca (No 2) [2002] NSWSC 505 (25 June 2002).
[5]Hall v Carney (No 2) [2012] SASCFC 105 (17 September 2012) [8]-[12] (Gray J). See also Reginald Alfred Becker v Public Trustee of New South Wales [2006] NSWSC 1146 (2 November 2006) [12]-[15]; Murdocca v Murdocca (No 2) [2002] NSWSC 505 (25 June 2002).
[6]Davies v Gregory (1872-1875) 3 P & D 28 (Sir James Hannen).
[7]Gray v Hart [No 2] [2012] NSWSC 1562 (11 December 2012) [19] (White J); Spiers v English [1907] P 122; Re Cutliffe's Estate [1959] P 6; In the Will of Millar [1908] VLR 682.
The usual rules relating to probate litigation are founded on the public interest in ensuring that doubtful wills are not lightly admitted to proof by reason of the cost of opposing them and the importance of parties entering into ‘fruitless litigation’ on the basis that their costs will be paid by others.[8] In recent times, this traditional approach has been questioned on the basis of a counterveiling public interest of the need to ensure that litigation not be encouraged, particularly if it is adversarial litigation between disunited families battling for their perceived true inheritance, together with the concerns frequently expressed on the proportionality of costs in litigation.[9] If the litigation is adversarial litigation, it is common for the court to apply the usual rule as to costs and order that the unsuccessful party pay the other party’s costs.[10]
[8]Mitchell v Gard (1863) 3 Sw & Tr 275, 279 (Sir J P Wilde); Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 709; Shorten v Shorten[No 2] [2003] NSWCA 60 (9 April 2003) [15].
[9]Fielder v Burgess [2014] SASC 98 (7 August 2014) [58], [65] (Kourakis CJ); Shovelar v Lane [2011] EWCA Civ 802,[44] (Per Ward LJ with whom Arden and Moore-Bick LJJ agreed).
[10]Re Buckton; Buckton v Buckton [1907] 2 Ch 406, 414; Murdocca v Murdocca (No 2) [2002] NSWSC 505 (25 June 2002); Steel v Ifrah (No 2) [2013] VSC 167 (20 April 2013); Warton v Yeo [2015] NSWCA 115 (7 May 2015).
Defendant’s submissions
The defendant submits that the proceeding had been commenced on the basis that the deceased caused, or contributed to, the proceeding by the way in which she made her testamentary intentions known. It was contended that this was because the deceased chose to make a substantial departure from her previous dispositions, as well as attending on a solicitor with whom she had not dealt with beforehand.
The defendant also contends that reasonable grounds existed for the investigation of the deceased’s will. The defendant referred to the decision of Ginnane J in Veall & Anor v Veall (No 2)[11] and his Honour’s reference to In the Estate of Moyle: Moyle v Moyle[12] which sets out the usual rules relating to probate litigation. It was submitted that it was reasonable for the defendant to challenge the will and bring about the necessary investigation.
[11] [2014] VSC 99 (30 April 2014) [6].
[12](Unreported, Supreme Court of NSW, Santow J, 18 June 1988).
The defendant also referred to the Court of Appeal decision in Veall & Anor v Veall[13] where the circumstances were that the solicitor who drew the will had never acted for the beneficiary who obtained a greater share of the estate as a result of changes to the contested will. In this context, the Court of Appeal considered that there were suspicious circumstances calling for investigation as the will was ‘created within a matrix of sustained activity that was designed to increase [the beneficiary’s] participation in [the] estate’.[14] The defendant submits that because the plaintiff’s involvement in the changes to the disposition of the deceased’s estate to his benefit was greater than that of the beneficiary in Veall, it is all the more clear that the defendant acted reasonably in challenging and investigating the will.
[13][2015] VSCA 60 (16 April 2015) (‘Veall’).
[14]Ibid [199](5).
The defendant relies on the following matters to support the submission that her challenge to the validity of the will was made on reasonable grounds:
(a) the deceased’s proficiency in the English language. The defendant knew that many of her family and friends were prepared to attest to the deceased’s limitations in the English language;
(b) there was no evidence either way as to whether the will was read out or translated into the Italian language to the deceased on 31 August 1998 or of the testatrix giving instructions to Herbert Geer & Rundle (‘HG&R’);
(c) both Mr Gorr and Mr Hudson acknowledged in their evidence that the handwritten note by the defendant dated 9 June 1998 was a reasonable re-quest for information;
(d) the defendant only learned of the plaintiff’s version of what occurred at the family meeting on 11 June 1998 from the plaintiff’s affidavit filed in the proceeding;
(e) the letters dated 26 June 1998 and 10 July 1998 from Mr Gorr of HG&R to the defendant shows that the defendant acted reasonably;
(f) the defendant’s instructions given to her solicitors that caused them to correspond with HG&R on 13 July 1998 and 31 July 1998 about the Barbon Family Trust and its trustee and that Mr Gorr was not aware of any threat to the deceased’s estate at that time;
(g) that Mr Gorr conceded in his evidence at trial that the plaintiff had appointed Mr Gorr to remove the trustee company of the Barbon Family Trust;
(h) there was sustained activity that doubled the plaintiff’s participation in the deceased’s estate and entailed his substantial involvement, including introducing HG&R to the deceased, and those same solicitors acting for the plaintiff to do his will, in relation to his appointment as guardian of the Barbon Family Trust and in the removal and replacement of the trustee of the trust;
(i) the only file note regarding the drawing of the will was an internal memorandum from Ms Papas to Mr Hudson dated 28 August 1998, and this raised concerns because it was a file note on the plaintiff’s will file and the testatrix is referred to by reference to her relationship (namely that of parent) to the plaintiff and the date;
(j) the absence of evidence concerning the drafting and insertion of paragraph 7 of the will which the internal memorandum indicates was drafted between 28 August 1998 and 31 August 1998; and
(k) the witnesses to the deceased’s signature on her will gave no evidence as to obtaining instructions for the will and the only evidence given as to their sig-natures on the will was that they recognised their signatures on the document.
Plaintiff’s submissions
The plaintiff submitted that it was obvious that the proceeding was not commenced on the basis that the deceased caused, or contributed, to the proceeding being instituted by the way in which she made her testamentary intentions known in that there was no allegation that either by her words or conduct that she caused the defendant to hold concerns as to her testamentary capacity.
It was next submitted that this was not a case in which the residuary beneficiary, being the plaintiff, has by his actions caused or contributed to the institution of the proceeding. Properly characterised, the defendant’s case was about the alleged lack of independence of HG&R rather than the plaintiff’s conduct. No allegation of undue influence was made against the plaintiff and no direct allegation of suspicion arising from the plaintiff’s conduct was made by the defendant. Nonetheless, in the reasons for judgment the Court was satisfied there was no suspicion that the plaintiff procured HG&R to act as his instrument to draw the deceased’s will on his instructions, rather than those of the deceased.
The plaintiff submitted that the reasonableness of the investigation into the deceased’s will was to be assessed prior to the initiation of the proceeding by giving grounds for the challenge to the will.
In written submissions, the plaintiff set out the relevant matters that the defendant knew or had the means of knowing at the time she filed her grounds of objection for challenging the validity of the deceased’s will as follows:
(a) her handwritten note to the plaintiff dated 9 June 1998 requesting that complete records of the trustee of the Barbon Family Trust for the last five years be forwarded directly to her or her named accountant;
(b) what was said at the family meeting on 11 June 1998 between her parents, the plaintiff, the defendant and Mr Tessari and that, as a result of the family meeting, the defendant’s relationship with her parents and the plaintiff had imploded;
(c) what had been said in a telephone call made by the deceased to her on 12 June 1998;
(d) the contents of the letters dated 26 June 1998 and 10 July 1998 from Mr Gorr to the defendant and Mr Tessari detailing the attitude of their clients to matters relevant to the trustee company and the Barbon Family Trust;
(e) her instructions to Mr Abrahamson that caused him to correspond with Mr Gorr on 13 July 1998 and 31 July 1998 about the trustee company and the Bar-bon Family Trust;
(f) the contents of the letter from Mr Gorr dated 5 August 2014 regarding the trustee company and the Barbon Family Trust;
(g) the contents of telephone conversations between Mr Abrahamson and Mr Hudson on 10, 11, 13 and 27 August 1998 in which, on the last two occasions, Mr Hudson stated that HG&R acted for the deceased and her husband and not for the plaintiff.
(h) by August 1998, the deceased had lived in Australia for 47 years and had an adequate level of English to give instructions to lawyers and read relevant documents;
(i) on 1 October 2003, the defendant had issued a summons for an intervention order against the deceased arising out of events said to have occurred on 25 September 2003 at Mr Tessari’s dental surgery;
(j) on 16 October 2003, the deceased was represented by counsel, Mr Parncutt, at the Heidelberg Magistrates Court without the assistance of an interpreter and had signed a deed of agreement written in English containing, amongst other matters, an undertaking in favour of the defendant;
(k) save for 16 October 2003, from about 11 June 1998 until her death in January 2014, the deceased had not seen either the defendant or her two grandchildren;
(l) the deceased’s 1978 will was complete and regular on the face of it and apparently valid, was prepared by Mr Darren Moses, solicitor of John Wilder Darren Moses, and witnessed by him and his wife. The will did not contain an attestation clause stating that the will had been interpreted to the deceased before execution; and
(m) the deceased’s 1998 will, executed within three months of the family meeting on 11 June 1998, was complete and regular on the face of it and apparently valid, had been prepared by HG&R and witnessed by two independent witnesses who were solicitors at HG&R and would be able to give evidence as to the obtaining of instructions for and the execution of the will, and had not been revoked prior to her death on 22 January 2014. Further, in clause 7 of her will, the deceased had set out her reasons for ‘intentionally not providing for’ the defendant.
Consideration
On the first ground, the defendant relies on the deceased’s substantial departure from her previous dispositions and the engagement of a solicitor that she had not dealt with beforehand. She relies on the decision of the Court of Appeal in Veall to submit that this should be considered as ‘suspicious circumstances calling for investigation’. The defendant did not make any direct allegation of suspicion arising out of the plaintiff’s conduct. Instead, the defendant asserted a lack of independence of HG&R, rather than by the plaintiff. To the extent that the defendant submits that the ‘sustained activity’ whereby the deceased made a substantial change in the disposition of her estate in favour of the plaintiff, together with the involvement of the plaintiff and the solicitors whom he introduced to the deceased to draw the will, has now been characterised by the defendant as suspicious conduct, that submission is rejected. Accordingly, I am satisfied that the deceased did not cause or contribute to the proceeding being instituted by the way in which she made her testamentary intentions known and that the plaintiff has not caused or contributed to the proceeding being instituted.
The second ground relied upon by the defendant was that circumstances existed that reasonably called for the will to be challenged and investigated. In the defendant’s submissions, there were matters referred to at trial as factors that should be considered as supporting the reasonableness of the defendant’s challenge to the deceased’s will. In oral submissions, the defendant conceded that the reasonableness of the investigation was to be assessed prior to the initiation of the proceeding by giving grounds for the challenge to the will.
The list of the factors relied upon by the plaintiff as being the relevant matters that the defendant knew or had the means of knowing at the time she filed her grounds of objection have been listed by the plaintiff in a neutral manner. Looked at objectively, I am satisfied that the defendant knew of these matters or had the means of knowing them, yet she still made the decision to initiate the proceeding. In my view, knowing of these matters or having the means of knowing them, the defendant did not have reasonable grounds for challenging the validity of the deceased’s will.
The usual exceptions in the probate rules for costs not following the event should not apply to the defendant’s costs in this proceeding. In reality, the litigation has been adversarial litigation instituted by the defendant against the plaintiff and she has been unsuccessful. The usual rules as to costs should apply, that is, the defendant should pay the plaintiff’s costs of the proceeding.
Should the defendant pay the plaintiff’s costs on an indemnity basis?
The plaintiff seeks indemnity costs against the defendant as from 25 June 2014. He seeks them on two grounds: the first on the basis that the proceeding was hopeless; further or alternatively, on the basis that the defendant unreasonably rejected a Calderbank offer made by the plaintiff on 10 June 2014 that remained open for acceptance for 14 days.
The plaintiff’s application for indemnity costs was supported by an affidavit sworn on 22 September 2015 by the plaintiff’s solicitor, Ms Margaret Leech. She deposed that after being served with the defendant’s grounds of objection, she forwarded a letter dated 10 June 2014 to the defendant’s solicitors setting out the reasons for the defendant’s claim being without merit and would fail at trial and invited them:
… to withdraw the proceedings on the basis that at this stage each party will pay its own costs. This offer remains open for a period of 14 days. If you do not withdraw the proceedings this letter will be produced at the trial of the matter on the question of costs and costs will be sought on an indemnity basis from your client.
The defendant’s solicitors did not respond to the letter.
Following judgment, Ms Leech forwarded a further letter dated 17 September 2015 to the solicitors for the defendant noting, inter alia, as follows:
We are therefore of the view that our Calderbank letter has established a proper basis for a claim for indemnity costs which we now seek in the draft General Form of Order.
The defendant’s solicitors informed Ms Leech on 17 September 2015 that the plaintiff’s claim for indemnity costs as set out in the proposed order would be opposed. The defendant’s solicitors informed Ms Leech that submissions would be provided that sought orders to the effect that the defendant’s costs be paid on a standard basis, in default of agreement, from the estate of the deceased and that the plaintiff’s costs be paid from the estate of the deceased on an indemnity basis.
The prima facie position in respect of costs in litigation is for standard costs to be ordered by the Court. A special costs order will only be made where the proceeding exhibits a special or unusual feature or special circumstances. Each proceeding must be considered on its own facts and, specifically, whether those facts support the making of a special order for costs.
In Ugly Tribe v Sikola,[15] Harper J identified the following circumstances as warranting a special costs order, noting that the categories of circumstances are not closed:
[15]Ugly TribeCo Pty Ltd v Sikola (‘Ugly Tribe’) [2001] VSC 189 (14 June 2001) [7]–[8] (Harper J) (citations omitted). See also Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3) [2012] VSC 399 (14 September 2012). The decision at first instance was affirmed by the appellate decision on the issue of special costs: Sunland Waterfront (BVI) Ltd & Anor v Prudentia Investments Pty Ltd & Ors [2013] VSCA 237 (6 September 2013) [538]–[551].
(a) the making of an allegation, known to be false, that the opposite party is guilty of fraud;
(b) the making of an irrelevant allegation of fraud;
(c) conduct which causes loss of time to the court and to other parties;
(d) the commencement or continuation of proceedings for an ulterior motive;
(e) conduct which amounts to a contempt of court;
(f) the commencement or continuation of proceedings in wilful disregard of known facts or clearly established law; and
(g) the failure until after the commencement of the trial, and without explanation, to discover documents, the timely discovery of which would have considerably shortened and very possibly avoided, the trial.
The plaintiff also referred to the decision of Colgate-Palmolive Co v Cussons Pty Ltd[16] and to an extract by Professor Dal Pont on indemnity costs as follows:
A special costs order may ensue where it appears to the court ‘that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success’, in which case the action ‘must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law’. Despite this ‘presumption’, it is not a prerequisite to the power to award special costs that a collateral purpose or a species of fraud be established. It is sufficient to enliven the discretion that, for whatever reason, a litigant, whether as plaintiff or defendant, persists in what on proper consideration should be seen to be a hopeless case.[17]
[16](1993) 46 FCR 225.
[17]G E Dal Pont, Law of Costs (LexisNexis Butterworths, 3rd ed, 2013) 549-550 [16.51].
In respect of the plaintiff’s second basis for seeking indemnity costs, the plaintiff relies on the principles set out in Hazeldene Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2).[18] The correct approach is to treat the rejection of a Calderbank offer as a matter to which the court should have regard when considering whether to order indemnity costs. The critical question is whether the rejection of the offer is sufficient to establish an order for indemnity costs being made. The answer to this question depends upon whether the rejection of the offer was unreasonable in the circumstances, having regard to at least the following matters:
[18](2005) 13 VR 435 (‘Hazeldene’)
(a) the stage of the proceeding at which the offer was received;
(b) the time allowed to the offeree to consider the offer;
(c) the extent of the compromise offered;
(d) the offeree’s prospects of success, assessed as at the date of the offer;
(e) the clarity with which the terms of the offer were expressed;
(f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree’s rejecting it.[19]
[19]Ibid, 442.
The Court of Appeal in Hazeldene specifically rejected the notion that an imprudent refusal of an offer to compromise gives rise to a presumption that the party rejecting the offer should pay the offeror’s costs on an indemnity basis if the offeree receives a less favourable result, stating that ‘the correct approach…is to treat the rejection of a Calderbank offer as a matter to which the court should have regard when considering whether to order indemnity costs.’[20]
[20]Ibid, 435-436.
The Court of Appeal also rejected the notion that the maker of a Calderbank offer should not be entitled to costs unless the offer sets out with some specificity the basis for his or her contentions that the compromise should be accepted, stating it is ‘neither necessary or desirable to lay down any general rule in this regard’.[21]
[21]Ibid, 442.
In oral submissions, the defendant referred to two cases that concerned the issue of whether offers made at a very early point in the proceeding could properly be characterised as a demand to capitulate and whether the offer was a meaningful compromise: Berrigan Shire Council v Ballerini[22] and Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters.[23] These cases are but examples of the exercise of the discretion in relation to indemnity costs in the particular circumstances, applying the principles set out in Hazeldene. As Nettle J stated in Berrigan Shire Council v Ballerini:
… each case turns on its own facts and the question is not to be judged only by reference to the reasonableness of the offer but also by reference to the reasonableness of the refusal of the offer. The exercise of the discretion turns on an assessment of what is fair and reasonable in all the circumstances of the case.[24]
[22][2006] VSCA 65 (23 March 2006).
[23][2011] VSC 636 (9 December 2011).
[24][2006] VSCA 65, [37].
The plaintiff’s offer made on 10 June 2014 sets out the reasons for the defendant’s claim being without merit and that it would fail at trial as follows:
We have taken instructions from Mr Barbon and are advised that his mother had a more than adequate excellent [sic] grasp of the English language. This will be attested to by her brother and extrinsic evidence will be provided by at least two independent witnesses that Mrs. Barbon's grasp of the English language was very good. She was more than capable of instructing her then solicitors, Messrs Herbert Geer and Rundle, and did so.
The allegation that the Will was executed in “suspicious circumstances” is outrageous.
There is no dispute that the Will was executed in the context of family disharmony. We are instructed that it was the conduct of the Caveatrix which led the deceased to instruct her Solicitors to prepare the Will in the terms under which she signed the Will. Her subsequent conduct in instituting proceedings against her mother to prohibit her contacting your client and her family would have done nothing to make Mrs Barbon change her mind.
As to paragraph 2(c) you appear to be suggesting that Messrs Herbert Geer & Rundle had a conflict of interest in acting for Mrs Barbon individually as well as acting for the Family Trust of which Mr Harry Barbon was one of the Directors. With respect this is a nonsense. The natural conclusion of this is that a firm of Solicitors would have to send its clients to different firms to deal with each and every aspect of their business trust and personal interests.
We fail to see in any event how the fact that Herbert Geer & Rundle acted for the Trust and for Mrs Barbon personally had any effect on whether or not she knew and approved of the contents of her Will.
We are of the view that your case has no merit and will fail if it proceeds to Court. We have seen nothing to suggest that the Will will not be admitted to Probate.
In my view, this proceeding falls within the circumstances that warrant an award of indemnity costs as outlined in Ugly Tribe. The defendant has persisted in pursuing her case which, properly and reasonably assessed, was hopeless with no reasonable grounds justifying her challenge to the validity of the deceased’s will.
I also consider that the plaintiff should succeed on his application for indemnity costs on the alternative basis, applying Hazeldene. The plaintiff’s offer was made early in the proceeding, being approximately 11 days after receipt of the defendant’s Grounds of Objection, and allowed 14 days for a response. It was expressed in clear terms and no clarification of these terms was sought by the defendant. After assessing the case against the plaintiff and giving the reasons for it being without merit, it informed the defendant that the plaintiff was willing to bear his own costs. Those costs would be substantially less than they are now after a lengthy trial where considerable costs have been incurred since the offer was made. The offer clearly foreshadowed an application for an indemnity costs in the event that the defendant rejected it. In the circumstances, the defendant’s failure to respond to the Calderbank offer was an unreasonable rejection by her. The result constitutes a substantially worse outcome for the defendant than would have followed from her acceptance of the offer.
Orders
I will make the following orders:
(a) Subject to any requisitions of the Registrar of Probates, probate of the will of Avilla Barbon, deceased, dated 31 August 1998 ("the Will") be granted to the plaintiff.
(b) The defendant pay the plaintiff's costs of and incidental to the proceeding, including reserved costs, to be taxed in default of agreement:
(i) on a standard basis, up to and including 24 June 2014; and
(ii) on an indemnity basis on and from 25 June 2014.
(c) The plaintiff be paid or retain from the deceased’s estate, such of his costs as represents the difference between costs on an indemnity basis and costs on a standard basis of and incidental to the proceeding in respect of the period up to and including 24 June 2014.
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