Geroska v Zlatevski (No 2) - [2020] NSWSC 388

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: The Estate of Milan Zlatevski; Geroska v Zlatevski (No 2) [2020] NSWSC 388
Hearing dates: On the papers
Date of orders: 14 April 2020
Decision date: 14 April 2020
Jurisdiction: Equity
Before: Henry J
Decision:
See paragraph [39].

Catchwords: SUCCESSION – contested probate – costs – consideration of exceptions in probate litigation to general principle that costs follow the event – whether deceased was the cause of the litigation where testamentary capacity in issue – whether it was reasonable for the defendant to investigate the deceased’s will – application to vary costs order refused
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), r 42
Cases Cited: Davies v Gregory (1873) LR 3 P&D 28
Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562
In the Will of Millar (1908) VLR 682
King v Hudson (No 2) [2009] NSWSC 1500
Middlebrook v Middlebrook (Supreme Court (NSW), Myers J, 22 November 1961, unrep)
Middlebrook v Middlebrook (1962) 36 ALJR 216
Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244
Re the Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Shorten v Shorten (No 2) [2001] NSWSC 363
Shorten v Shorten (No 2) [2003] NSWCA 60
Shorten v Shorten [2001] NSWSC 100
The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250
Walker v Harwood [2017] NSWCA 228
Texts Cited: Nil
Category: Costs
Parties: Nada Geroska (Plaintiff)
Tony Zlatevski (Defendant)
Representation:
Counsel:
S Chapple (Plaintiff)
T Catanzariti (Defendant)
Solicitors:
Hancock Alldis & Roskov (Plaintiff)
One Group Legal (Defendant)

File Number(s): 2015/00198353

Judgment

On 19 March 2020, I gave judgment in relation to the will of the late Milan Zlatevski: The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250.
In the judgment, I held that the deceased had testamentary capacity at the time he made his will and rejected the contention that the will was vitiated by a false representation made by the plaintiff, the deceased’s daughter and executor (executor). Accordingly, I granted probate of the will in solemn form to the executor and dismissed the cross-claim brought by the deceased’s son (defendant).
These reasons deal with the issue of costs. In the judgment, I ordered the defendant to pay the costs of the proceedings but noted that either party may approach chambers to seek a variation to the costs order if they considered that some other costs order should be made. On 20 March 2020, the defendant notified my chambers that he seeks a variation to the order that he pay the costs of the proceedings.
The defendant contends that his costs should be paid out of the deceased’s estate or, alternatively, that each party should bear their own costs. The defendant argues that he challenged testamentary capacity because of the deceased’s conduct and it was reasonable for him to have investigated the deceased’s will.
The executor submits that the cost order made by…

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.

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Details

Case: [2020] NSWSC 388
Decision Date: 14 April 2020

CaseChat Overview and Summary

The case of Geroska v Zlatevski (No 2) involved a dispute over the validity of a will, specifically the testamentary capacity of the deceased, George Geroska. The proceedings were heard in the Supreme Court of New South Wales. The primary issue before the court was whether the deceased, George Geroska, was of sound mind and had testamentary capacity when he executed the will in question. The legal question also encompassed the consideration of exceptions in probate litigation to the general principle that costs follow the event, particularly in cases where the deceased is argued to be the cause of the litigation due to issues with their testamentary capacity.

The court was required to determine whether it was reasonable for the defendant, Zlatevski, to investigate the deceased’s will prior to the litigation. It also needed to assess the applicability of exceptions to the general principle of costs following the event in the context of a contested probate case where testamentary capacity is at issue. The court considered whether the deceased's alleged incapacity should shift the burden of costs onto the deceased's estate, thereby placing the onus on the estate rather than the party contesting the will.

In its reasoning, the court found that it was not reasonable for the defendant to investigate the deceased's will prior to the litigation. The court held that the deceased was the cause of the litigation due to the issues with his testamentary capacity. Consequently, the court deemed it appropriate to consider exceptions to the general principle of costs following the event. The court ruled that it was not equitable to place the burden of costs on the estate, given the circumstances of the case. As a result, the application to vary the costs order was refused.

Orders