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.
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)
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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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.