(4) Vary Slattery J’s order of 9 August 2024 that “As between the plaintiff and the first defendant the plaintiff shall pay the first defendant’s costs of both these proceedings, which are fixed as a specified gross sum instead of assessed costs in the total sum of $40,000” by substituting $130,000 for $40,000.
Catchwords:
APPEALS – Challenge to underlying findings of fact and credit-based findings – Where appellant unrepresented – Consideration of extent of court’s role in relation to unrepresented parties
SUCCESSION – Where probate not granted in respect of a 2013 Will – Where primary judge not satisfied that deceased had testamentary capacity at time of making of 2013 Will – Where clinical notes recorded cognitive defects both before and after execution of 2013 Will – Significance of such evidence – Where will witnessed by a solicitor – Where testatrix unaware about why she was attending solicitor’s office – Application of Banks v Goodfellow (1870) LR 5 QB 549
COSTS – Where family provision claim rejected on basis that 1998 Will provided adequately for the appellant – Where primary judge may have held differently if appellant ordered to pay costs – Where primary judge unaware of Calderbank offer and formal offer of compromise made well prior to trial – Where different judge revisited costs order following primary judge’s retirement – Where, notwithstanding holding that Calderbank offer and offer of compromise unreasonably rejected, respondent awarded less than one quarter of his costs – Whether exercise of discretion vitiated by error or otherwise miscarried – Relevance of notional “buffer” that had been referred to by primary judge
Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company
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.
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Details
AGLC
Chalik v Chalik [2025] NSWCA 136
Case
[2025] NSWCA 136
Decision Date
CaseChat Overview and Summary
The appeal concerned a challenge to findings of fact and credit made by the primary judge in proceedings relating to the deceased's testamentary capacity and the validity of a 2013 Will. The appellant, who was unrepresented, sought to overturn the primary judge's decision that the deceased lacked testamentary capacity at the time of executing the 2013 Will, which meant probate was not granted in respect of that document. The appeal also involved a review of the costs order made by the primary judge.
The court was required to determine whether the primary judge erred in finding that the deceased lacked the necessary testamentary capacity to make the 2013 Will, applying the principles established in *Banks v Goodfellow*. This involved considering the significance of clinical notes recording cognitive defects both before and after the will's execution, and the circumstances surrounding its witnessing by a solicitor, including the testatrix's apparent lack of awareness regarding her attendance at the solicitor's office. Furthermore, the court had to assess whether the primary judge's costs order, which was revisited by a different judge following the primary judge's retirement, was vitiated by error or otherwise miscarried, particularly in light of a *Calderbank* offer and a formal offer of compromise that had been made prior to trial.
The court found no error in the primary judge's determination regarding testamentary capacity, upholding the conclusion that the deceased did not possess the requisite mental capacity to understand the nature and effect of the 2013 Will. The clinical evidence, coupled with the circumstances of the will's execution, supported this finding. Regarding costs, the court allowed the cross-appeal, finding that the primary judge's discretion had miscarried. Despite the respondent's rejection of reasonable settlement offers, the primary judge had awarded less than one quarter of the respondent's costs, and the court determined that the notional "buffer" referred to by the primary judge did not justify this outcome.
The appeal was dismissed with costs. Leave to cross-appeal was granted, and the cross-appeal was allowed with costs. The order of the primary judge fixing the plaintiff's costs payable to the first defendant at $40,000 was varied to $130,000.
Orders
Orders of the court
(1) Appeal dismissed with costs.
(2) Leave to cross-appeal granted.
(3) Cross-appeal allowed with costs.
(4) Vary Slattery J’s order of 9 August 2024 that “As between the plaintiff and the first defendant the plaintiff shall pay the first defendant’s costs of both these proceedings, which are fixed as a specified gross sum instead of assessed costs in the total sum of $40,000” by substituting $130,000 for $40,000.