Burge v Burge (No. 2) - [2015] NSWSC 141

Supreme Court

New South Wales

Medium Neutral Citation: Burge v Burge (No. 2) [2015] NSWSC 141
Hearing dates: On the papers
Date of orders: 03 March 2015
Decision date: 03 March 2015
Jurisdiction: Equity Division
Before: Darke J
Decision:
Order that plaintiff’s costs on an indemnity basis and the defendant’s costs on the ordinary basis be paid out of the estate.

Catchwords: COSTS – departing from general rule that costs follow the event – probate litigation – litigation brought about by state of papers left by deceased – whether unreasonable for unsuccessful party to not accept Calderbank offer
Legislation Cited: Succession Act 2006 (NSW) s 8
Cases Cited: Burge v Burge [2014] NSWSC 1772
Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
Lippe v Hedderwick [1922] HCA 44; (1922) 31 CLR 148
Shorten v Shorten (No 2) [2003] NSWCA 60
Vaughan v Hoskovich [2010] NSWSC 706
Category: Costs
Parties: Anne Bell Burge (plaintiff)
Conrad Michael Burge (defendant)
Representation:
Counsel: V F Kerr (plaintiff)
P Blackburn-Hart SC (defendant)
Solicitors: Lane and Lane (plaintiff)
Lane and O’Rourke (defendant)

File Number(s): 2013/137871
Publication restriction: Nil

Judgment

Introduction

The question of costs remains to be determined in this matter. By a judgment delivered on 11 December 2014 (“the main judgment”), it was held that the Court was not satisfied that a certain informal testamentary document was intended to form the will of the late Rupert Burge (see Burge v Burge [2014] NSWSC 1772). Accordingly, the Amended Cross Claim brought by the defendant was ordered to be dismissed, and probate of a will dated 15 March 1983 was granted to the plaintiff.
In the course of the main judgment, I expressed the view that the litigation had essentially been brought about by the state of the papers left by Rupert Burge and that, in those circumstances, it was prima facie appropriate to order that the costs of all parties be borne out of the estate on an indemnity basis (see the main judgment at [67]).
The plaintiff has taken issue with that approach, and submits that the appropriate order for costs is that the defendant pays the plaintiff’s costs up to 9 July 2014 on the ordinary basis, and after 9 July 2014 on an indemnity basis. There is no dispute that the plaintiff’s costs should be paid out of the estate on an indemnity basis.
Directions were made for the filing of written submissions. The plaintiff filed written submissions of Counsel dated 5 February 2015, and the defendant filed written submissions of Senior Counsel dated 25 February 2015.
Neither party suggested that any further oral hearing was required, so the matter has been dealt with on the papers. The written submissions have been considered, and have been placed on the Court file.

Submissions

In brief summary, the plaintiff submitted that the case was not truly one brought about by the conduct of the testator and thus did not fall within the first of the recognised exceptions referred to in Shorten v Shorten…

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 Burge v Burge (No. 2)

Details

AGLC: Burge v Burge (No. 2) [2015] NSWSC 141
Case: [2015] NSWSC 141
Decision Date: 03 March 2015

CaseChat Overview and Summary

The case involved a dispute over the distribution of a deceased's estate. The parties were the executors of the deceased's estate, who were also family members. The court was required to determine the legal issues surrounding the costs incurred during the probate litigation. The dispute arose due to the state of the papers left by the deceased, which led to the litigation being brought about.

The central legal issue was whether it was unreasonable for the unsuccessful party not to accept a Calderbank offer. A Calderbank offer is a settlement offer made by one party to another before a trial or hearing, which includes an offer to pay the other party's costs up to a certain date if the offer is not accepted. The court had to determine whether the unsuccessful party's refusal to accept the Calderbank offer was unreasonable and whether it was appropriate to depart from the general rule that costs follow the event.

The court held that it was unreasonable for the unsuccessful party not to accept the Calderbank offer, and that it was appropriate to depart from the general rule that costs follow the event. The court found that the litigation was brought about by the state of the papers left by the deceased, and that the unsuccessful party's refusal to accept the Calderbank offer prolonged the litigation unnecessarily. The court ordered the unsuccessful party to pay the successful party's costs up to the date of the Calderbank offer.

Orders