Colosimo v Colosimo (No 2)
[2023] VSC 134
•24 March 2023
| 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 usually either no order as to the unsuccessful party’s costs or costs are paid out of the estate. For reasonable grounds calling for an investigation to exist, it must be established that, when a proceeding was commenced, all proper steps were taken to inform the challenger as to the facts of the case and, having done so, the challenger has been led reasonably to the bona fide belief that there were good grounds for impeaching a will. If there is no reasonable cause for investigation — that is, if the unsuccessful party has not acted reasonably — then costs will usually follow the event.
44.The usual rules relating to probate litigation are founded on the public interest in ensuring, on the one hand, that doubtful wills are not lightly admitted to proof by reason of the cost of opposing them and, on the other, the importance of parties not entering into ‘fruitless litigation’ on the basis that their costs will be paid by others. If the litigation is adversarial litigation, it is common for the Court to apply the usual rule as to costs and order that the unsuccessful party pay the other party’s costs. This means that it cannot be assumed that costs in probate litigation will be allowed either wholly or partly out of the estate.
(footnotes omitted)
[2]Supreme Court Act 1986 (Vic) s 24(1).
[3][2023] VSC 2.
Relevant chronology
On 12 November 2020, the plaintiff published his advertisement indicating an intention to apply for a grant of probate of the Copy Will,[4] and an originating motion was filed with this Court on 16 December 2020.[5]
[4]Court Book, 3.
[5]Court Book, 4.
The defendant lodged a caveat on 24 November 2020 and particularised reasons for objection to the plaintiff’s probate application on 28 January 2021.[6]
[6]Court Book, 7-9.
On 2 February 2021, the defendant filed a Caveator’s Summons.
On 3 February 2021, the defendant filed affidavit material in support of his claim as caveator. On the same date, the plaintiff’s solicitor sent an email to the defendant’s solicitors acknowledging receipt of Caveator Summons and noting that the affidavit material filed with the probate application supported the plaintiff’s position (‘the 3 February 2021 Email’).[7] An offer was made to allow the defendant to withdraw his objection on a ‘walk away’ basis within seven days.
[7]Affidavit of Mark Albert Maier filed 24 January 2023, Exhibit ‘MAM 1’.
The 3 February 2021 Email relevantly read:
[…]
There is no evidence that the deceased held the original of his Will. That is the end of the matter in so far as the presumption that your client’s rely on is concerned. With that alone the probate application succeeds.
The evidence however that is to hand goes further and makes it quite clear that the deceased believed he had a Will in January 2020. That has been set out in the probate application.
The deceased was looking for the Will at Les Christie’s. The deceased still had his own copy in his files at home. He doesn’t take those actions if he has destroyed his Will in the past.
My client does not need to prove where the original Will is, however it is almost certainly the case that it was on the GS&M file and destroyed with that file. The probate application provides the evidence for that conclusion.
Your client has been on notice of these facts because I provided the probate affidavit material to him.
[…]
I endeavoured to engage in dialogue with you so that your client did not file unnecessary Grounds of Claim document. With your client having filed that document, I endeavoured to engage in dialogue with you so that your client did not issue a Caveator’s summons. You haven’t come back to me and now the matter is headed to the Probate List.
This is loser pays litigation. It is not a jurisdiction in which the estate will pay all party’s costs.
[…]
The defendant’s solicitors did not respond to the 3 February 2021 Email, and on 12 February 2021 the plaintiff’s solicitor sent another email to the defendant’s solicitors confirming that no response had been received and they ‘would proceed on the basis that the offer contained therein was rejected.’[8]
[8]Affidavit of Mark Albert Maier filed 24 January 2023, Exhibit ‘MAM 2’.
On 5 March 2021, the parties came before Judicial Registrar Keith and orders were made adding the defendant to these proceedings and granting him leave to file amended grounds of objection.
On 14 May 2021, the matter came before Judicial Registrar Englefield and was fixed for trial on 27 September 2022 on an estimate of two (2) days.
On 9 August 2022, the plaintiff’s solicitor emailed the defendant’s solicitors a Calderbank letter, relevantly noting:
(a) the content of the 3 February 2021 Email remains applicable;
(b) the plaintiff is still prepared to resolve the matter if the defendant withdraws his grounds of objection, consents to bear his own costs incurred and consents to being removed as a defendant to the proceeding; and
(c) the above offer is open for 14 days, being until 23 August 2022.
On 13 August 2022, the defendant filed an outline of submissions and on 14 August 2022, the plaintiff filed an outline of submissions.
On 20 September 2022, the plaintiff filed a reply to the defendant’s outline of submissions.
The trial in this matter took place on 27 and 28 September 2022.
Consideration
As the Original Will could not be produced there existed in this case reasonable grounds for an investigation.[9] The plaintiff filed comprehensive affidavit evidence—being the affidavits of Mr Leslie Christie, Mr Mark Maier and Ms Michelle Rosita Caruana-Scott—on 16 December 2020. The defendants must have known based on the plaintiff’s affidavit materials that there was cogent evidence that would rebut the presumption of revocation. The presumption of revocation in this case was, from the outset, a weak one.
[9]See Re Maddock; Bailey v Maddock (No 2) [2023] VSC 2, [43].
In addition to the issues relating to the presumption of revocation, the defendant took no steps to enter into discussions with the plaintiff in an attempt to resolve the matter. Based on the evidence before the Court there was a distinct lack of engagement by the defendant’s lawyers for the duration of this matter. Even in early August 2022 when the Calderbank letter was sent and the trial was imminent, the defendant’s lawyers did not take active steps to engage in any settlement discussions or to respond to the Calderbank letter.[10] This left the plaintiff with no alternative but to pursue his claim at trial.
[10]T11.15-T12.26; Affidavit of Mark Albert Maier filed 24 January 2023, Exhibit ‘MAM 3’ and ‘MAM 4’.
The plaintiff should bear his own costs of the application for probate of the Copy Will which was lodged on 16 December 2020.
I consider that as and from 17 December 2020, the defendant was on notice of the substance and strength of the plaintiff’s claim by way of the plaintiff’s affidavit material.
The defendant was unsuccessful in the substantive proceedings and in the circumstances of this case costs should follow the event.
As to the quantum of costs, I consider that the plaintiff is entitled to costs on the standard basis. I do not consider that the defendant’s conduct rises a level justifying the making of an indemnity costs order.
Conclusion
The Court orders that:
(a) The defendant pay the plaintiff’s costs on a standard basis, as and from 17 December 2020; and
(b) The proceeding otherwise be dismissed.
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