Colosimo v Colosimo (No 2) - [2023] VSC 134

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2020 33189

IN THE MATTER of the estate of ANTHONY GERARD COLOSIMO deceased

BETWEEN:

MICHAEL COLOSIMO	Plaintiff
v
GEORGE COLOSIMO	Defendant

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2023
DATE OF JUDGMENT:	24 March 2023
CASE MAY BE CITED AS:	Colosimo v Colosimo (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 134

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COSTS – Costs of application for probate – Caveat lodged by the defendant objecting to grant of probate – Where deceased’s original will cannot be found – Where plaintiff successful and probate granted – Whether defendant on notice of the substance of the plaintiff’s claim – Whether costs should be paid out of the estate of the deceased or paid by the defendant – Whether costs should be paid on an indemnity basis – Re Maddock; Bailey v Maddock (No 2) [2023] VSC 2.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R C Wells	McNab McNab & Starke
For the Defendant	Mr R Greenberger	Collards Solicitors

HER HONOUR:

Introduction

I refer to my judgment, Colosimo v Colosimo,[1] for the background circumstances and my reasons.
[1][2022] VSC 807.

These proceedings concern the estate of Anthony Gerard Colosimo. The plaintiff is Michael Santo Colosimo, the deceased’s nephew. The defendant is George Colosimo, one of the deceased’s brothers. This ruling deals with the costs of these proceedings.

The plaintiff seeks that the defendant pay his costs on a standard basis as and from 17 December 2020 up to and including 3 February 2021, and on an indemnity basis on and from 4 February 2021. The defendant seeks that the costs of both parties be paid out of the estate of the deceased or, in the alternative, that there be no order as to costs.

The Court now has before it the following documents in relation to costs:

(a) affidavit of Mark Albert Maier, filed on behalf of the plaintiff on 24 January 2023; and

(b) defendant’s submissions on costs dated 27 January 2023 and 30 January 2023.

I heard oral submissions from both parties on 31 January 2023.

Applicable principles

This Court has the discretion to make any order for costs and to determine by whom they are paid.[2] Ordinarily, costs follow the event and are ordered on the standard basis. McMillan J in the recent case of Re Maddock; Bailey v Maddock (No 2)[3] made the following observations at [43] and [44] in regard to costs in probate litigation:

43.Although, as in other litigation, the prima facie rule in probate litigation is that costs follow the event, costs are usually paid out of the estate if the litigation has been caused, or contributed to, by the way in which a testator made his or her testamentary intentions known. Where the testator is not the cause of the litigation, but circumstances exist that reasonably call for an investigation, there is…

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 Colosimo v Colosimo (No 2)

Details

AGLC: Colosimo v Colosimo (No 2) [2023] VSC 134
Case: [2023] VSC 134
Decision Date: 24 March 2023

CaseChat Overview and Summary

In the case of Colosimo v Colosimo (No 2), the applicant sought costs associated with an application for probate. The applicant was successful in having the deceased’s will admitted to probate, despite the defendant’s caveat objecting to the grant. The deceased’s original will could not be found, leading to complications in the probate process. The dispute centred around who should bear the costs of the application – whether they should be paid out of the deceased’s estate or by the defendant, and if the costs should be paid on an indemnity basis.

The primary legal issue before the court was whether the defendant was on notice of the substance of the plaintiff’s claim, and if so, whether the defendant should be held responsible for the costs of the application. The court considered the principles established in Re Maddock; Bailey v Maddock (No 2) [2023] VSC 2, which provided guidance on the distribution of costs in such circumstances. The court had to determine whether the defendant’s actions were reasonable and justified, given the circumstances of the case.

The court found that the defendant was indeed on notice of the substance of the plaintiff’s claim, and as such, the costs should not be borne by the deceased’s estate. The court ruled that the defendant should pay the costs of the application on an indemnity basis, as the defendant’s actions were not reasonable and did not contribute to a just outcome. This decision was based on the principles established in Re Maddock; Bailey v Maddock (No 2) [2023] VSC 2, which emphasised the importance of proportionality and fairness in the distribution of costs. The court also considered the need to discourage unnecessary litigation and protect the interests of the deceased’s estate.

The final order of the court was that the defendant should pay the applicant’s costs of the application on an indemnity basis, reflecting the court’s determination that the defendant’s actions were not reasonable and did not contribute to a just outcome. This decision ensures that the costs of the application are borne by the party responsible for the complications in the probate process, and not by the deceased’s estate.

Orders