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Brady v Mikan (No 2)

Brady v Mikan (No 2)

Case [2022] NSWSC 1320 29 September 2022

Costs

Probate and Administration

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Brady v Mikan (No 2) [2022] NSWSC 1320
Hearing dates: Written submissions 1, 2 August and 1 September 2022; 13 September 2022
Date of orders: 29 September 2022
Decision date: 29 September 2022
Jurisdiction: Equity - Probate List
Before: Kunc J
Decision:
See paragraph [51]

Catchwords:
SUCCESSION – Probate and administration – Costs – Where probate issues not the only matters in dispute – Interplay of costs principles where litigation may be attributed to testator, where circumstances warranted investigation and Calderbank offers – Some allocation of costs by reference to issues

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Aukuso v Tahan (No 2) [2018] NSWCA 302
Banks v Goodfellow (1870) LR 5 QB 549
Brady v Mikan [2022] NSWSC 956
Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248
Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562
King v Hudson [2009] NSWSC 1500
Nominal Defendant v Hawkins [2011] NSWCA 93
Orton v Smith (1873) LR 3 P&D 23
Re Estate late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Reginald Alfred Becker v Public Trustee of New South Wales [2006] NSWSC 1146
Shorten v Shorten (No 2) [2003] NSWCA 60

Category: Costs
Parties: Belinda Brady (First Plaintiff/Cross-Defendant)
Vesna Crnjak (Second Plaintiff/Cross-Defendant)
Tony Ilijanic (Third Plaintiff/Cross Defendant)
John Mikan (Defendant/Cross claimant)
Representation:
Counsel:

G Smith (Plaintiffs/Cross Defendants)
S Chapple (Defendant/Cross Claimant)

Solicitors:
Shead Lawyers (Plaintiffs/Cross Defendants)
Keypoint Law (Defendant/Cross Claimant)

File Number(s): 2019/326535
Publication restriction: Nil

Judgment

Summary

On 19 July 2022, the Court delivered its substantive judgment in these proceedings: Brady v Mikan [2022] NSWSC 956 (the Principal Judgment). Having found in favour of the Defendant/Cross Claimant (John), the parties were provided with an opportunity to prepare short minutes to give effect to the Court’s orders and to agree, insofar as possible, as to costs. While there was no dispute about the substantive orders to be made, they were unable to agree on costs, which are the subject of this judgment. It should be read, and assumes familiarity with, the Principal Judgment. Defined terms in the Principal Judgment have the same meaning in these reasons.
The Plaintiffs sought these cost orders:

“3. The first, second and third Plaintiffs/Cross-Defendants be indemnified out of the estate of the Deceased on the indemnity basis;
4. The Defendant/Cross-Claimant be indemnified out of the estate of the Deceased on the indemnity basis.”

John sought these costs orders:

“3. The first, second and third Plaintiffs/Cross-Defendants pay the costs of the Defendant/Cross-Claimant of the proceedings as follows:-
On the ordinary basis from 8 May 2020 up to and including 29 August 2020; and
On the indemnity basis on and from 30 August 2020.
4. The Defendant/Cross-Claimant be indemnified out of the estate of the Deceased on the indemnity basis for the difference in any costs not otherwise recovered from the Plaintiffs/Cross-Defendants in accordance with order…

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 Brady v Mikan (No 2)

Details

AGLC: Brady v Mikan (No 2) [2022] NSWSC 1320
Case: [2022] NSWSC 1320
Decision Date: 29 September 2022

CaseChat Overview and Summary

The case of Brady v Mikan (No 2) involved a dispute concerning succession and the administration of an estate. The matter was before the court as a result of a challenge to the validity of a will and the subsequent administration of the estate by the executor. The court had to determine various legal issues that arose from the dispute, including the costs associated with the litigation.

The court had to consider the interplay of various legal principles in the context of the succession dispute. These included the principles surrounding costs in probate litigation, the circumstances under which costs may be attributed to the deceased, and the appropriateness of making a costs order in light of the specific circumstances of the case. The court also had to evaluate the relevance of a Calderbank offer and the need for an investigation into the estate. The court considered whether the litigation was warranted under the circumstances and whether the executor had acted reasonably in pursuing certain claims.

The court found that while some of the litigation was directly attributable to the deceased, other aspects of the dispute were not. The court emphasised the need for an investigation into the estate and noted that the Calderbank offer made by the executor was a significant factor in its consideration of costs. The court also found that the executor's actions in pursuing certain claims were reasonable and warranted. In light of these findings, the court made an order for costs, allocating them by reference to the specific issues in dispute. The court's order reflected a balanced approach, taking into account the various factors that contributed to the litigation.

The court ordered that the costs of the proceedings be paid by the parties in proportion to the issues in dispute, with some costs attributed to the deceased and some to the executor. This approach reflected the court's consideration of the specific circumstances of the case and the principles of succession law. The court's order demonstrated a careful balancing of the various factors involved in the dispute, ensuring that the costs were allocated in a fair and equitable manner.

Orders