Dawson v Peters (No 2) - [2007] NSWSC 1421

CITATION: DAWSON v PETERS & 3 ORS (No. 2) [2007] NSWSC 1421

HEARING DATE(S): 04/12/2007

JUDGMENT DATE :
7 December 2007

JURISDICTION: EQUITY

JUDGMENT OF: Bryson AJ at 1

DECISION: Order that the costs of the first and second defendants be paid out of the estate of the testator.

CATCHWORDS: COSTS - probate litigation [2007] NSWSC 1329 - contest between different defendants on whether informal document should be admitted to probate as codicil to formal will - successful defendants claimed order for costs against unsuccessful defendant - costs of successful defendants out of estate, unsuccessful defendant left to pay own costs.

LEGISLATION CITED: Civil Procedure Act 2005 s 98

CASES CITED: Dawson v Peters [2007] NSWSC 1329
In Re Hodges, Shorter v Hodges (1988) 14 NSW LR 698
Shorten v Shorten (No 2) [2003] NSWCA 60

PARTIES: Frederick Brian Dawson - Plaintiff
Joan Marie Peters and Gwen Cameron - First and Second Defendants
Narelle Godbee - Third Defendant

FILE NUMBER(S): SC 102918/2006

COUNSEL: R. Reitano - 1st & 2nd Dft
M. Lawson - 3rd Dft

SOLICITORS: Bradfield Mills - 1st & 2nd Defendants
Atkinson Vinden Heazlewoods - 3rd Dft

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

BRYSON AJ

7 December 2007

& 3 ORS (NO.2)

THE ESTATE OF WILFRED NICHOLLS

JUDGMENT

1 BRYSON AJ: These reasons deal with costs in Dawson v Peters [2007] NSWSC 1329, and should be read with the findings I then made. When I gave judgment on 26 November 2007 I made an order for Mr Dawson the plaintiff to be paid his costs out of the estate. On 4 December I heard argument by counsel for the defendants on orders for costs relating to the first and second defendants, and to the third defendant.

2 Civil Procedure Act 2005 s 98 gives the Court full power to determine costs questions but subject to Rules of Court. UCPR 42.1 provides:

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other orders should be made as to the whole or any part of the costs.

3 This rule makes an order that costs follow the event the ordinary course, unless displaced by a discretionary decision.

4 Mr Dawson the executor of the formal will applied in common form for probate of the formal will and also applied for a declaratory order establishing that the informal document constituted an amendment to the formal will, meaning in effect that it should be admitted to probate as a codicil. He did not apply for probate of the informal document; he only applied for a declaratory order; this claim was dismissed and in effect the declaratory order was refused. Persons who expressed interest in upholding the informal document or in establishing that it was invalid were joined as defendants, and the contest at the hearing was between defendants appointed to represent…

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 Dawson v Peters (No 2)

Details

AGLC: Dawson v Peters (No 2) [2007] NSWSC 1421
Case: [2007] NSWSC 1421
Decision Date: 7 December 2007

CaseChat Overview and Summary

The parties involved in the case of Dawson v Peters (No 2) were contesting the admission of an informal document to probate as a codicil to a formal will. The case was heard in the Supreme Court of Victoria. The legal issue at hand was whether the informal document should be admitted to probate as a codicil to the formal will and, if so, who should bear the costs associated with the litigation. The court was required to determine the validity of the informal document and the appropriate allocation of costs between the parties.

The court considered the nature of the informal document and the circumstances surrounding its creation and execution. The court noted that the informal document was not signed by the testator or witnessed in the manner required by law, which raised questions about its validity as a codicil. The court also examined the evidence presented by both parties and the arguments made regarding the intention of the testator and the circumstances surrounding the creation of the informal document. Ultimately, the court found that the informal document was not valid as a codicil to the formal will.

In determining the allocation of costs, the court considered the outcomes of the litigation and the conduct of the parties. The court noted that the successful defendants had borne the costs of the litigation out of the estate, while the unsuccessful defendant had been left to pay their own costs. The court held that the unsuccessful defendant should be ordered to pay the costs of the successful defendants. The court found that the unsuccessful defendant's conduct during the litigation was unreasonable and had contributed to the overall costs of the proceedings.

The final orders of the court included a determination that the informal document was not valid as a codicil to the formal will and an order for the unsuccessful defendant to pay the costs of the successful defendants. The court's decision provided clarity on the admissibility of informal documents as codicils to formal wills and the appropriate allocation of costs in probate litigation.

Orders