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Chant v Curcuruto (No 2)

Chant v Curcuruto (No 2)

Case [2021] NSWSC 882 21 July 2021

Costs

Limitation Periods

Res Judicata

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Chant v Curcuruto; Chant v Curcuruto (No 2) [2021] NSWSC 882
Hearing dates: 7 July 2021
Date of orders: 21 July 2021
Decision date: 21 July 2021
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court in each proceeding:
(a) Orders that the Plaintiffs pay the Defendants’ costs, calculated on the ordinary basis.
(b) Orders that the Defendants’ costs, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate.
(c) Orders that any difference between costs calculated on the ordinary basis recovered from the Plaintiffs, and the costs, calculated on the indemnity basis, of the Defendants be paid out of the estate.
(d) Makes no order as to the Plaintiffs’ costs, to the intent that they are to bear their own costs.
(e) Orders that the Court Books be returned.

Catchwords:
COSTS — Two contested Probate proceedings involving different will-makers (husband and wife) heard consecutively with the evidence in one being evidence in the other – Probate sought in respect of the last Will of the two different will-makers – Plaintiffs unsuccessful in propounding each of the Wills – Defendants succeeded in propounding the penultimate Will of each will-maker - Only outstanding issue for determination is whether the Plaintiffs’ costs of each proceeding should be paid out of the estate of each will-maker or whether they should pay the Defendants’ costs, calculated on the ordinary basis of the proceedings – Otherwise agreed that Defendants’ costs, calculated on the indemnity basis, be paid out of the estate of each will-maker

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Brown v Guss (No 2) [2015] VSC 57
Chant v Curcuruto; Chant v Curcuruto [2021] NSWSC 751
Davies v Gregory (1873) LR 3 P&D 28
In Re Green [1969] WAR 67
In the Estate of Moyle: Moyle v Moyle (Supreme Court (NSW), Santow J, 18 June 1988, unrep)
Kostic v Chaplin [2007] EWHC 2909 (Ch)
Middlebrook v Middlebrook (1962) 36 ALJR 216
Mitchell v Gard (1863) 3 Sw & Tr 275; 164 ER 1280
Myers v Elman [1940] AC 282; [1939] 4 All ER 484
Nicholson v Knaggs [No 3 - Severance And Costs] [2009] VSC 328
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Pates v Craig (Estate of the late Joyce Jean Cole) (Supreme Court (NSW), Santow J, 5 September 1995, unrep)
Perpetual Trustee Company Ltd v Baker [1999] NSWCA 244
Re Plant [1926] P 139
Spiers v English [1907] P 122
Starr v Miller; Starr v Miller (No 2) [2021] NSWSC 685
Sydney Markets Credit Services Co-operative Ltd v Taylor (No. 3) [2015] NSWSC 1236
Tombling v Universal Bulb Company [1951] 2 TLR 289
Tsaousis v Tsaousis (a minor, by his litigation guardian Tsaousis) [2019] VSC 511
Twist v Tye (1902) P 92

Texts Cited:
G E Dal Pont, Law of Costs (4th ed, 2018, LexisNexis Butterworths)
Miller, Probate Practice (Maxwell: 1900 Ed.)

Category:

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 Chant v Curcuruto (No 2)

Details

AGLC: Chant v Curcuruto (No 2) [2021] NSWSC 882
Case: [2021] NSWSC 882
Decision Date: 21 July 2021

CaseChat Overview and Summary

The case of Chant v Curcuruto (No 2) involved two separate contested probate proceedings concerning the estates of two different will-makers, both of whom were deceased. The first case involved the estate of the husband, and the second case involved the estate of the wife. Both cases were heard consecutively, and the evidence presented in the first case was considered evidence in the second case. The plaintiffs sought to have the last wills of the husband and wife admitted to probate, but were unsuccessful in both cases. The defendants, on the other hand, succeeded in having the penultimate wills of both the husband and wife admitted to probate. The only outstanding issue for determination was whether the plaintiffs' costs of each proceeding should be paid out of the estate of each will-maker, or whether the plaintiffs should pay the defendants' costs, calculated on the ordinary basis of the proceedings. The parties had otherwise agreed that the defendants' costs, calculated on the indemnity basis, be paid out of the estate of each will-maker.

The legal issues that the court had to decide were whether the plaintiffs were entitled to their costs of the proceedings, and if so, whether those costs should be paid out of the estate of each will-maker or by the plaintiffs themselves. The court also had to determine whether the defendants were entitled to their costs, and if so, whether those costs should be paid by the plaintiffs or out of the estate of each will-maker. The court had to consider the relevant legal principles and authorities in making its decision.

The court held that the plaintiffs were not entitled to their costs of the proceedings, as they had not succeeded in their applications to have the last wills of the husband and wife admitted to probate. The court held that the plaintiffs should pay the defendants' costs, calculated on the ordinary basis of the proceedings. The court held that the defendants were entitled to their costs, calculated on the indemnity basis, which should be paid out of the estate of each will-maker. The court based its decision on the relevant legal principles and authorities, and took into account the fact that the parties had otherwise agreed on the costs to be paid by the defendants.

In conclusion, the court held that the plaintiffs were not entitled to their costs of the proceedings, and that they should pay the defendants' costs, calculated on the ordinary basis of the proceedings. The court held that the defendants were entitled to their costs, calculated on the indemnity basis, which should be paid out of the estate of each will-maker. The court's decision was based on the relevant legal principles and authorities, and took into account the fact that the parties had otherwise agreed on the costs to be paid by the defendants. The court's orders were that the plaintiffs pay the defendants' costs, calculated on the ordinary basis of the proceedings, and that the defendants' costs, calculated on the indemnity basis, be paid out of the estate of each will-maker.

Orders