Heffernan v Innes (No 2)

Case [2021] NSWSC 1187


Supreme Court


New South Wales

Medium Neutral Citation: Heffernan v Innes & Anor (No 2) [2021] NSWSC 1187
Hearing dates: In Chambers on the papers
Date of orders: 17 September 2021
Decision date: 17 September 2021
Jurisdiction:Equity
Before: Hallen J
Decision:

Refer to paragraph [174]

Catchwords:

COSTS – Probate proceedings - Where Court finds in favour of an informal document propounded by the Plaintiff; rejected the defence of lack of testamentary capacity; and dismissed the Cross-Claim of the Defendants which alleged that there was a will made by the deceased which was not found and the original, a copy, or even a draft, of which no one had seen – Defendants had also asserted that the unfound will was removed by the father of the Plaintiff, after the deceased’s death, from the deceased’s home – Serious allegation of what may have amounted to criminal conduct under s 135 Crimes Act 1900 (NSW) made but not proved – Whether Defendants maintained defences and made the serious allegation which had no reasonable prospects of success

COSTS - Whether there should be exception to general rule that costs follow the event bearing in mind nature of the proceedings or otherwise – Consideration given to the nature of the proceedings

COSTS - Offers made by the Plaintiff – Whether each a Calderbank offer – Each offer not accepted by the Defendants, and the Plaintiff obtains an order on the claims no less favourable to her than the terms of the offer - Relevance of offer made if it was not a Calderbank offer on question of costs

Plaintiff contends that the Defendants should pay her costs of the proceedings calculated on the indemnity basis – Defendants orally submit that their costs should be paid out of the estate of the deceased

COSTS - How costs should be borne and whether the circumstances warrant the exercise of the Court’s discretion to make an indemnity costs order in favour of the Plaintiff.

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 3

Crimes Act 1900 (NSW) s 135

Evidence Act 1995 (NSW) s 131

Legal Profession Uniform Law Application Act 2014 (NSW) ss 74-80

Uniform Civil Procedure Rules 2005 (NSW) r 20.26, 42.2

Cases Cited:

Ausino International Pty Ltd v Apex Sports Pty Ltd [2006] NSWSC 1119

Bassett v Cameron (No 2) [2021] NSWSC 419

Bouras v Grandelis (2005) 65 NSWLR 214; [2005] NSWCA 463

Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343

Calderbank v Calderbank [1975] 3 WLR 586; [1975] 3 All ER 333

Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353

Chant v Curcuruto; Chant v Curcuruto (No 2) [2021] NSWSC 882

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Commissioner of Taxation v Ross (No 2) [2021] FCA 1088

Commonwealth of Australia v Gretton [2008] NSWCA 117

Coregas Pty Limited v Penford Australia Pty Limited (No 2) [2013] NSWCA 11

Crump & Ors v Equine Nutrition Systems Pty Ltd trading as Horsepower & Anor (No 2)

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AGLC
Heffernan v Innes (No 2) [2021] NSWSC 1187
Case
[2021] NSWSC 1187
Decision Date

CaseChat Overview and Summary

In the matter of Heffernan v Innes (No 2), the plaintiff sought to have an informal document accepted as the will of the deceased, while the defendants contested the validity of the document and raised several allegations, including the existence of an unfound will and a serious allegation of misconduct. The case was heard in the Supreme Court of New South Wales. The legal issues the court was required to decide included whether the plaintiff should be granted an order for indemnity costs, whether the defendants' defences and serious allegations had reasonable prospects of success, and whether there were circumstances warranting an exception to the general rule that costs follow the event.

The court found in favour of the plaintiff, propounding the informal document as the will of the deceased, rejected the defence of lack of testamentary capacity, and dismissed the cross-claim of the defendants. The court held that the defendants' defences and serious allegations did not have reasonable prospects of success. The court also considered the nature of the proceedings, the offers made by the plaintiff, and the defendants' failure to accept those offers. The court found that the defendants' conduct in maintaining their defences and making the serious allegation, despite a lack of reasonable prospects of success, warranted the exercise of the court's discretion to make an indemnity costs order in favour of the plaintiff.

The court determined that the plaintiff should be granted an order for indemnity costs, and the defendants' costs should not be paid out of the estate of the deceased. The court held that the nature of the proceedings, the offers made by the plaintiff, and the defendants' failure to accept those offers were relevant factors in determining the appropriate costs order. The court held that the circumstances warranted the exercise of the court's discretion to make an indemnity costs order in favour of the plaintiff, and the defendants should pay the plaintiff's costs of the proceedings calculated on the indemnity basis.

The final orders of the court were that the defendants pay the plaintiff's costs of the proceedings calculated on the indemnity basis, and that the defendants' costs should not be paid out of the estate of the deceased. The court also made an order that the defendants' cross-claim be dismissed with costs.

Orders

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Evidence Before The Court

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