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Kemp v Findlay (No 2)

Kemp v Findlay (No 2)

Case [2024] NSWSC 1157 13 September 2024

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Supreme Court

New South Wales

Medium Neutral Citation: Kemp v Findlay (No 2) [2024] NSWSC 1157
Hearing dates: On the papers; last submissions 16 August 2024
Date of orders: 13 September 2024
Decision date: 13 September 2024
Jurisdiction: Equity - Expedition List
Before: Rees J
Decision:
Vary costs order; plaintiff to pay 75% of defendant’s costs

Catchwords:
COSTS – informal will – whether testator’s failure to execute informal will “caused” the litigation – principles at [7]-[13] – overriding purpose of Civil Procedure Act informs assessment of reasonableness – plaintiff told by testator that he had changed his will – plaintiff had reason to think testator no longer wished to leave his estate to her, given separation and family law settlement – plaintiff provided with evidence in support of informal will before proceedings commenced – plaintiff sought to admit earlier will to probate – ran expansive case in adversarial manner for financial gain – plaintiff’s conduct unreasonable.

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56(1), 98
Succession Act 2006 (NSW), s 8(2)(a)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Estate Moran; Teasel v Hooke [2014] NSWSC 1839
Estate Moran; Teasel v Hooke (No 2) [2015] NSWSC 88
Ethertonv Mitchelmore [2024] NSWSC 170
Fielder v Burgess [2014] SASC 98
Hall v Carney (No 2) [2012] SASCFC 105
Kemp v Findlay [2024] NSWSC 902
Kostic v Chaplin [2007] EWHC 2909 Ch
Mitchell v Gard (1863) 3 SW & TR 275
Petrovski v Nasev; The Estate of Janakievska (No 2) [2011] NSWSC 1474
Public Trusteev New South Wales Cancer Council [2002] NSWSC 220
Re Estate of Paul Francis Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Re Estate of the Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311
Shorten v Shorten (No 2) [2003] NSWCA 60

Category: Costs
Parties: Elizabeth Anne Kemp (Plaintiff)
David William Findlay (Defendant)
Representation: Counsel:
MK Condon SC / PG Bolster (Plaintiff)
L Ellison SC (Defendant)
Solicitors:
Keypoint Law (Plaintiff)
L Rundle & Co Solicitors (Defendant)

File Number(s): 2024/108017

JUDGMENT

HER HONOUR: On 26 July 2024, I gave judgment in this matter and ordered the plaintiff, Elizabeth Kemp, to pay the defendant’s costs of the proceedings: Kemp v Findlay [2024] NSWSC 902. Ms Kemp seeks to vacate the costs order. Instead, Ms Kemp asks that her costs of the proceedings be paid out of the Estate or, alternatively, that she not be ordered to pay the defendant’s costs.

Facts

In 2015, Andrew Findlay made a will leaving his $13.5 million Estate to his de facto partner, Ms Kemp (2015 Will). The couple separated on 27 May 2019. On 4 June 2019, Mr Findlay amended the Will on his computer, leaving his Estate to the couple’s three children instead (2019 Document). On 5 June 2019, Mr Findlay told Ms Kemp that he had changed his will, leaving his Estate to their children. (Ms Kemp did the same.) Mr Findlay also informed his cousin, the defendant, by three emails…

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 Kemp v Findlay (No 2)

Details

AGLC: Kemp v Findlay (No 2) [2024] NSWSC 1157
Case: [2024] NSWSC 1157
Decision Date: 13 September 2024

CaseChat Overview and Summary

In the matter of Kemp v Findlay (No 2), the parties involved were Kemp, the plaintiff, and Findlay, the defendant, in a dispute over an informal will. The case was heard by the Supreme Court of South Australia. The plaintiff sought to admit a previous will to probate, arguing that the testator had expressed an intention to change his will but had not executed a formal replacement. The defendant contested the plaintiff's claim, asserting that the plaintiff had acted unreasonably in pursuing the matter after being informed by the testator of the intended changes.

The primary legal issue the court had to address was whether the plaintiff's failure to execute a formal will as instructed by the testator constituted a cause of the litigation. The court examined the principles set out in previous case law regarding the assessment of whether a party's conduct was reasonable, taking into account the overriding purpose of the Civil Procedure Act. The court needed to determine if the plaintiff's actions were unreasonable, given the circumstances, including the plaintiff's awareness of the testator's intentions and the subsequent adversarial conduct in the litigation.

The court found that the plaintiff's conduct was unreasonable. The plaintiff was aware that the testator no longer wished to leave his estate to her, considering the separation and the family law settlement. Despite this knowledge, the plaintiff proceeded to admit the earlier will to probate and pursued the matter in an adversarial manner, seeking financial gain. The court held that the plaintiff's unreasonable conduct contributed to the litigation, and thus, the plaintiff was liable for the defendant's costs. The court's reasoning was grounded in the principles that guided the assessment of reasonableness, aligning with the overriding purpose of the Civil Procedure Act to facilitate just, quick, and cheap resolution of real issues.

The final orders of the court reflected its reasoning, holding the plaintiff liable for the defendant's costs. The court determined that the plaintiff's actions were unreasonable, and as a result, she was not entitled to reimbursement for the costs incurred by the defendant. The court's decision was based on the established principles and the specific circumstances of the case, ensuring that the litigation process was not unduly prolonged by unreasonable conduct.

Orders