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Galea v Camilleri

Galea v Camilleri

Case [2019] NSWSC 167 1 March 2019

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Galea v Camilleri [2019] NSWSC 167
Hearing dates: 29, 31 January 2019
Date of orders: 01 March 2019
Decision date: 01 March 2019
Jurisdiction: Equity
Before: Robb J
Decision:
(1) Order dismissing the plaintiffs’ proceedings.
(2) Order that the plaintiffs pay the defendant’s costs of the proceedings.
(3) To the extent the defendant’s indemnity costs are not otherwise satisfied by order (2), order the defendant's indemnity costs to be paid out of the estate of the deceased.
Catchwords:
COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed — Whether it was reasonable for the plaintiffs to commence the proceedings when they did
COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed — Significance of a failure to give the defendant an opportunity to respond to an appropriately worded letter of demand prior to commencing the proceedings
Legislation Cited: Succession Act 2006 (NSW), ss 27, 59
Uniform Civil Procedure Rules 2005 (NSW), rr 12.1, 42.19
Cases Cited: Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Newcastle Wallsend Coal Co Pty Ltd v Industrial Parsons v Davison [2016] NSWSC 1491
Relations Commission of New South Wales [2006] NSWCA 129; (2006) 153 IR 386
Windgap Foundation Ltd v Solomons [2018] NSWSC 809
Category: Principal judgment
Parties: Carol Galea (First Plaintiff)
Reno Camilleri (Second Plaintiff)
John Camilleri (Defendant)
Representation:
Counsel:
A Crossland (Plaintiffs)
L Ellison SC (Defendant)
Solicitors:
Elder Law (Plaintiffs)
Turner Freeman (Defendant)

File Number(s): 2017/234386

Judgment

The plaintiffs in this matter, Ms Carol Galea and Mr Reno Camilleri, are siblings of the defendant, Mr John Camilleri.
The parties and their siblings are children of the late Ms Patricia Camilleri, who died on 21 October 2014.
The deceased made a will on 20 September 2010 and a codicil on 15 November 2013. The first plaintiff and the defendant were nominated in the will as the executors of the deceased’s estate, but the effect of the codicil was that only the defendant was named as the executor.
This Court granted probate of the deceased’s will to the defendant on 14 August 2015.
These proceedings were commenced by the first plaintiff filing a summons on 7 August 2017. By statement of claim filed on 11 September 2017 the first plaintiff, and by an amended statement of claim filed on 20 December 2017 both plaintiffs, sought as their primary relief an order that probate of the will of the deceased to the defendant be revoked, and that one or more of the plaintiffs be granted administration of the deceased’s estate with the will annexed.
The plaintiffs also sought a declaration that the deceased lacked testamentary capacity to make the codicil. If the codicil did not take effect, then both the first plaintiff and the defendant would be nominated executors under the will, and it would be open for the plaintiffs to argue, as they claimed in the amended…

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 Galea v Camilleri

Details

AGLC: Galea v Camilleri [2019] NSWSC 167
Case: [2019] NSWSC 167
Decision Date: 01 March 2019

CaseChat Overview and Summary

In the matter of Galea v Camilleri, the dispute involved a claim for damages brought by the plaintiffs, Galea, against the defendants, Camilleri. The proceedings were ultimately dismissed, and the central issue before the court was whether the plaintiffs were entitled to costs on a party/party basis. This inquiry hinged on the reasonableness of the plaintiffs' decision to commence the proceedings at the time they did, as well as the necessity of providing the defendants with an opportunity to respond to a properly articulated letter of demand before initiating legal action.

The court considered the established legal principle that costs typically follow the event of the proceedings. In cases where proceedings are discontinued or dismissed, the reasonableness of the plaintiff's decision to commence the action and the procedural steps taken prior to the litigation are crucial. Specifically, the court examined whether the plaintiffs had adequately attempted to resolve the matter without litigation, such as by issuing a letter of demand that clearly articulated the basis for the claim and gave the defendants a reasonable opportunity to respond.

Upon evaluating the evidence and arguments presented, the court concluded that the plaintiffs had not acted reasonably in initiating the proceedings without first providing the defendants with an appropriately worded letter of demand. This procedural oversight contributed to the court's decision that the plaintiffs were not entitled to costs on a party/party basis. The court's reasoning underscored the importance of following proper pre-litigation protocols to ensure that all parties have the opportunity to address disputes in a manner that may potentially avoid the need for formal legal action.

As a result of the court's decision, the plaintiffs were not awarded costs on a party/party basis. The court's ruling emphasised the necessity of adhering to procedural fairness and the importance of providing defendants with an opportunity to respond to a well-drafted letter of demand before initiating legal proceedings.

Orders