Barbon v Tessari (No 2)

In the matter of Barbon v Tessari (No 2), the defendant, Tessari, contested the plaintiff's application for the grant of probate of a will on the basis that the plaintiff lacked the necessary knowledge and approval to be appointed as the executor. The dispute was heard in the Supreme Court of South Australia. The core issue for the court was to determine whether the plaintiff’s costs should be paid from the estate or by the defendant, and if so, on what basis – standard or indemnity.

The court examined the applicable legal principles concerning costs in probate matters, referencing cases such as Hall v Carney (No 2) and Ugly Tribe Co Pty Ltd v Sikola. It was established that when a party successfully defends against a challenge to a will's probate, they are generally entitled to indemnity costs. However, the court must also consider the conduct of the parties and whether there are any exceptional circumstances that would warrant a different outcome. Given that the plaintiff was successful in their application and the defendant's challenge was unfounded, the court ruled that the plaintiff was entitled to indemnity costs.

The reasoning of the court was grounded in the precedent set by prior cases, which emphasised the importance of protecting the estate from unnecessary costs when a challenge to probate is unsuccessful. The court found that the defendant's challenge lacked merit and was vexatious, thereby justifying the award of indemnity costs to the plaintiff. Consequently, the court ordered that the defendant pay the plaintiff's costs on an indemnity basis.