Colegrove v Dullaghan (No 2) - [2016] NSWSC 1236

Supreme Court

New South Wales

Medium Neutral Citation: Colegrove v Dullaghan (No 2) [2016] NSWSC 1236
Hearing dates: In chambers on the papers
Date of orders: 05 September 2016
Decision date: 05 September 2016
Jurisdiction: Equity
Before: Robb J
Decision:
(1) Order that the defendant’s costs of the proceedings and the cross claim up to 14 April 2016 be paid by the plaintiff out of the estate of the late Mr Peter Paskalis.
(2) Order that the plaintiff’s costs of the proceedings and the cross claim after 14 April 2016 be paid by the defendant on the ordinary basis.
(3) Order that the exhibits and all documents produced on subpoena or notice to produce may be returned forthwith in accordance with the Rules.

Catchwords: COSTS – plaintiff applied for order under s 8 of the Succession Act 2006 (NSW) – order granted – will handwritten by plaintiff and dictated by plaintiff’s partner who was a solicitor – partner was sole witness –unusual circumstances – defendant initially justified in testing validity of plaintiff’s claim – whether it was reasonable for the defendant to continue to contest the application after receiving the plaintiff’s evidence without being at risk as to payment of costs – held it was no longer reasonable for the defendant to contest the application without risk of costs upon receiving the two independent witnesses’ affidavits – whether indemnity costs should be allowed – plaintiff served Calderbank offer on the defendant – held Calderbank offer was not valid – held defendant’s cost up to the date of the service of affidavit of second independent witness be paid out of the estate of the deceased – held plaintiff’s cost of the proceedings thereafter be paid by the defendant on the ordinary basis
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Colegrove v Dullaghan [2016] NSWSC 1105
Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562
Mitchell v Gard (1863) 3 Sw & Tr 275
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Re Will of Jane (No 2) [2011] NSWSC 883
Shorten v Shorten (No 2) [2003] NSWCA 60
Category: Costs
Parties: Jennifer Anne Colegrove (plaintiff)
Toula Dullaghan (defendant)
Representation:
Counsel: L Ellison SC/B Narula (plaintiff)
S Bell   (defendant)
Solicitors:
Hilton King Lawyers (plaintiff)
Websters Solicitors (defendant)

File Number(s): 2015/276114
Publication restriction: None

Judgment

On 12 August 2016, I delivered the primary judgment in these proceedings: Colegrove v Dullaghan [2016] NSWSC 1105.
This judgment concerns the costs order that should be made in the proceedings. The parties both requested that I give them an opportunity to make written submissions on costs. Ms Colegrove delivered written submissions dated 18 August 2016, and Ms Dullaghan delivered written submissions on the same date.
Ms Colegrove’s position was that each party should be ordered to pay their own costs up to 14 April 2016, and Ms Dullaghan should pay Ms Colegrove’s costs after 14 April 2016 on an…

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 Colegrove v Dullaghan (No 2)

Details

AGLC: Colegrove v Dullaghan (No 2) [2016] NSWSC 1236
Case: [2016] NSWSC 1236
Decision Date: 05 September 2016

CaseChat Overview and Summary

The plaintiff, Colegrove, sought an order for costs under section 8 of the Succession Act 2006 (NSW) in relation to a dispute over the validity of a will. The will was handwritten by Colegrove and dictated by their partner, who was a solicitor, with the partner being the sole witness to the document. The defendant, Dullaghan, contested the validity of the will and the plaintiff's claim, arguing that the circumstances were unusual and that the defendant was initially justified in testing the validity of the will. The court was required to determine whether it was reasonable for the defendant to continue contesting the application after receiving the plaintiff's evidence without being at risk as to payment of costs.

The court held that it was no longer reasonable for the defendant to contest the application without risk of costs upon receiving the two independent witnesses’ affidavits. The court found that the defendant's costs up to the date of the service of affidavit of the second independent witness were to be paid out of the estate of the deceased, while the plaintiff's cost of the proceedings thereafter was to be paid by the defendant on the ordinary basis. The court also found that the Calderbank offer made by the plaintiff was not valid. The court found that the plaintiff had not made a genuine offer to settle the proceedings on reasonable terms, as required by the principle established in Calderbank v Calderbank.

In conclusion, the court granted the plaintiff's application for costs under section 8 of the Succession Act 2006 (NSW) and ordered that the defendant's costs up to the date of the service of affidavit of the second independent witness were to be paid out of the estate of the deceased, while the plaintiff's cost of the proceedings thereafter was to be paid by the defendant on the ordinary basis. The court also found that the Calderbank offer made by the plaintiff was not valid. The court's decision highlights the importance of making genuine offers to settle proceedings on reasonable terms and the consequences of failing to do so.

Orders