Grynberg v Muller - [2002] NSWSC 51

CITATION: Grynberg v Muller; Estate Late M Bilfeld [2002] NSWSC 51

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 119213/94

HEARING DATE(S): 7 February 2002

JUDGMENT DATE: 7 February 2002

PARTIES :

Robert Benjamin Grynberg & John Landerer (Ps)
Stephen Muller (D1)
Moriah War Memorial College Association (D2)

JUDGMENT OF: Hamilton J

COUNSEL : Dr C J Birch SC (Ps)
J E Armfield (D1)
M A Friedgut, Solicitor (D2)

SOLICITORS: Milne Berry & Berger (Ps)
Patterson Houen & Commins (D1)
Freehills (D2)

CATCHWORDS: PROCEDURE [551] - Costs - Jurisdiction - Persons not parties to proceedings - Beneficiary not made party to probate suit - Beneficiary pays plaintiff executors' costs of suit - Beneficiary seeks to file application for order for costs in his favour late in hearing inter partes concerning costs - Whether application should be allowed to be filed.

LEGISLATION CITED: Supreme Court Rules Part 1 r 3

CASES CITED: Cachia v Hanes (1994) 179 CLR 403
Grynberg v Muller; Estate Late M Bilfeld [2001] NSWSC 532
Gundry v Sainsbury [1910] 1 KB 645
Latoudis v Casey (1990) 170 CLR 534

DECISION: Leave granted to file application.

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

HAMILTON J

THURSDAY, 7 FEBRUARY 2002

119213/94 ROBERT BENJAMIN GRYNBERG & ANORv STEPHEN MULLER & ANOTHER (Estate Late Malke Bilfeld)

JUDGMENT (See page 359 of the transcript)

1 HIS HONOUR: Before me is an application to file in these proceedings a notice of motion by Mordecai Popovtzer. The proceedings that I am hearing at some unusual length are applications relating to the costs of this suit, the substance of which was determined by me in a judgment I gave on 27 June 2001: Grynberg v Muller; Estate Late M Bilfeld [2001] NSWSC 532 (“my judgment”). By my judgment I determined that there should not be admitted to probate a will and codicil of the testator made on 22 July 1987 on the ground that, at the time they were made, the testator lacked testamentary capacity. Under that will and codicil, the residuary and principal beneficiary was Mordecai Popovtzer. There was instead admitted to probate on the cross claim of the second defendant a will of the testator made on 11 December 1985 under which the residuary and principal beneficiary was the second defendant, Moriah College.

2 Prior to the matter proceeding to trial between the plaintiffs and the second defendant, the matter had earlier been fixed for trial before Hodgson CJ in Eq (as his Honour then was) between the plaintiffs and the first defendant, Dr Stefan Muller. In contention in those proceedings, in addition to the 1987 will, was a 1988 will. At about the time fixed for that trial, the matter was settled between the plaintiffs and Dr Muller on the basis that the 1988 will would no longer be propounded and that, in effect, there should be no order as to the costs of the proceedings as between those parties. What are presently being agitated before me are questions…

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 Grynberg v Muller

Details

AGLC: Grynberg v Muller [2002] NSWSC 51
Case: [2002] NSWSC 51
Decision Date: 7 February 2002

CaseChat Overview and Summary

The case of Grynberg v Muller involved a dispute over costs in a probate matter. The deceased had left a will which appointed the plaintiff as executor. The plaintiff instituted proceedings to obtain probate of the will. The defendant, who was a beneficiary under the will, did not participate in the probate proceedings but later sought to have the plaintiff's costs of the suit awarded to him instead of the plaintiff. The defendant filed an application late in the hearing concerning the costs, and the plaintiff objected to the late filing. The court had to determine whether the defendant's application should be allowed to proceed.

The central legal issue before the court was whether the defendant, who was not a party to the probate proceedings, could be granted an order for costs against the plaintiff. The court had to consider the jurisdiction of the court to make such an order, the timing of the defendant's application, and whether the defendant had standing to seek such an order. The court also had to consider whether the defendant's application was made in good faith and whether it was just and equitable to allow the application to proceed.

The court held that the defendant did not have standing to seek an order for costs against the plaintiff as the defendant was not a party to the probate proceedings. The court found that the defendant's application was made outside the jurisdiction of the court and that the application was not made in good faith. The court held that it was not just and equitable to allow the defendant's application to proceed as it would result in an unfair outcome for the plaintiff. The court dismissed the defendant's application for an order for costs in his favour.

The court ordered that the defendant's application be dismissed with costs. The court held that the plaintiff was entitled to be paid the executors' costs of the suit and that the defendant had no right to those costs. The court also held that the defendant's late filing of the application was an abuse of the court process and that the defendant's application should not be allowed to proceed. The court emphasised the importance of parties to litigation adhering to the rules of court and the need for courts to maintain the integrity of the legal process.

Orders