Kalaf v Panagiota Grimanes as Executor of the Will of Despina Kalaf

[2013] WASC 327 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	KALAF -v- PANAGIOTA GRIMANES As Executor of the Will of DESPINA KALAF [2013] WASC 327 (S)

CORAM	: ALLANSON J
HEARD	:  31 OCTOBER 2013
DELIVERED	:  15 NOVEMBER 2013
FILE NO/S	:  CIV 2895 of 2011
MATTER	:  The Estate of Despina Kalaf (Dec)
BETWEEN	: PETER KALAF

Plaintiff

AND

PANAGIOTA GRIMANES As Executor of the Will of
DESPINA KALAF

First Defendant

PANAGIOTA GRIMANES

Second Defendant

LEANNE MALLIS As Executor of the Will of
EMANUEL KALAF

Third Defendant

ANGELINE DIAMOND
Fourth Defendant

[2013] WASC 327 (S)

Catchwords:

Costs - Application by unsuccessful defendants to have costs paid out of estate -

Discretion of the court - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1, O 66 r 9, O 73 r 15

Supreme Court Act 1935 (WA), s 37(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr T Lampropoulos SC
First Defendant	:	No appearance
Second Defendant	:	Dr P R MacMillan
Third Defendant	:	Dr P R MacMillan
Fourth Defendant	:	Mr S P Paonni

Solicitors:

Plaintiff	:	Chris Biris
First Defendant	:	No appearance
Second Defendant	:	Havilah Legal
Third Defendant	:	Havilah Legal
Fourth Defendant	:	Vincent Partners

Case(s) referred to in judgment(s):

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Tarabini v Silvester (Unreported, WASCA, Library No 960684S, 6 December

1996)

[2013] WASC 327

ALLANSON J

1. ALLANSON J: Following my decision in this matter on 30 August 2013, the second defendant (Ms Grimanes in her personal capacity) and third defendant (Ms Mallis as executor of her father's estate) have applied by chamber summons for an order that the costs of the action be paid out of the estate. The plaintiff (Mr Kalaf) opposes the order. The fourth defendant (Ms Diamond) did not participate in the trial, but gave notice that she would abide the decision of the court. She also opposes an order for costs out of the estate.

2              As a result of my decision declaring that the late Mrs Despina Kalaf

lacked testamentary capacity, and revoking the grant of probate of the will dated 10 August 2010, it is likely that an earlier will, executed on 19 November 2009, will be proved and admitted to probate. That has not yet been done. Under the 2009 will, the parties to the current action would share the estate.

3              The costs of and incidental to all proceedings in court are in the

discretion of the court: Supreme Court Act 1935 (WA) s 37(1). The discretion must be exercised judicially, but it is otherwise unconfined: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [21] - [22], [134]; Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 540, 558, 562, 568. While the discretion to award costs cannot be shackled, and considerations which might guide the exercise of the discretion cannot be rigidly applied, the authorities offer guidance on the proper exercise of the discretion. Consistency in the exercise of judicial discretion is important in the administration of justice. Giving proper consideration to the rules of court and decisions in other cases is an important measure in ensuring consistency.

1. The general rule in O 66 r 1 of the Rules of the Supreme Court 1971 (WA), while it is expressed not to limit the general discretion conferred on the court, is that the court will generally order that the successful party to any action or matter recover his costs. The general rule that costs follow the event applies in probate matters, although there are well recognised exceptions: Tarabini v Silvester (Unreported, WASCA, Library No 960684S, 6 December 1996). There are also rules relating to probate actions in O 66 r 9, which are in part repeated in O 73 r 15, but this case does not fall within r 9.

2. In the present matter I am satisfied that the costs of the action should not be paid out of the estate.

[2013] WASC 327

ALLANSON J

6              First, the costs incurred by the defendants in this litigation were not

incurred in the administration of the estate of Mrs Kalaf, but in furtherance of their personal interests as beneficiaries under the 2010 will. In particular, Ms Grimanes did not participate as the executor or personal representative. In that capacity, she was separately represented and chose to abide the decision of the court.

7              Second, Mr Kalaf brought these proceedings to challenge the will

after Ms Grimanes had obtained a grant of probate and had commenced the administration of the estate. The proceedings were, in essence, adversarial litigation between Mr Kalaf (who benefits under earlier wills) and Ms Grimanes and Ms Mallis. Although Ms Mallis appeared as executor of her father's estate, her conduct in the proceedings was more personal. The evidence was presented orally, and factual issues were strongly contested. Wider disputes between the parties bled into the contest over the will.

8              Third, the will was prepared during a period when Mrs Kalaf was

living with Ms Grimanes. Both defendants had ample opportunity to observe and form an opinion about Mrs Kalaf's testamentary capacity. The will was prepared by a solicitor who has been a long-time friend of Ms Mallis for many years, and who may have being doing legal work for Ms Grimanes around that time. As set out in my judgment, at [198] - [200], Ms Mallis apparently gave some initial instructions to the solicitor regarding the disposition of Mrs Kalaf's property. The will was prepared in circumstances that excited very strong suspicion. Not all of that could be attributed to the conduct of the solicitor. I did not accept his evidence, but I also found that I did not believe that the solicitor could have taken instructions from Mrs Kalaf in the manner described by the two defendants.

9              These factors, in combination, led me to conclude that the proper

exercise of discretion in this case is that the second and third defendants should pay the plaintiff's costs, and that the application for payment of the costs out of the estate should be dismissed.

10            The plaintiff, in addition, referred to the practical effect of the

defendants' application. On the assumption that the will executed by Mrs Kalaf in 2009 will be proved, an order for costs to be paid out of the estate would be borne equally by the four beneficiaries under that will. The plaintiff submitted that he would, as a beneficiary, ultimately be paying part of his own costs and part of the costs incurred by the defendants. Ms Diamond, who did not participate in the trial, would end

[2013] WASC 327

ALLANSON J

up paying a portion of those costs. While that is the practical effect of the orders sought, I am not satisfied that it is a factor that should affect the exercise of the discretion. Or, more accurately, were this otherwise a case where costs should be ordered out of the estate, the fact that it would diminish the estate and the plaintiff's share in it would not have led me to make a different order.

1. For these reasons, I dismiss the application of the second and third defendants by chamber summons.