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Knox v Peacock (No 2)

Knox v Peacock (No 2)

Case [2024] NSWSC 1372 30 October 2024

Costs

Limitation Periods

Res Judicata

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Knox v Peacock (No 2) [2024] NSWSC 1372
Hearing dates: On the papers
Date of orders: 30 October 2024
Decision date: 30 October 2024
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
(1) The defendant/cross-claimant is to pay the plaintiff/cross-defendant’s costs of the proceedings on the ordinary basis.
(2) Any shortfall between the costs of the plaintiff and the costs recovered from the defendant/cross-claimant pursuant to order (1) be paid from the estate of the late Eva Marie Easton on the indemnity basis.

Catchwords:
COSTS – Costs order – Calderbank offer – Offer made under Uniform Civil Procedure Rules 2005 (NSW) r 20.26 – Whether offers reasonable in the circumstances
COSTS – Party contesting testamentary capacity unsuccessful – Whether unsuccessful party’s costs should be paid out of the estate – Whether pursuit of claim reasonable

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98
Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.1

Cases Cited:
Alexakis v Masters (No 3) [2023] NSWSC 694
Calderbank v Calderbank [1976] Fam 93
Coregas Pty Limited v Penford Australia Pty Limited (No 2) [2013] NSWCA 11
Etherton v Mitchelmore [2024] NSWSC 170
Gray v Hart & Ors [2012] NSWSC 1435
In the matters of Earth Civil Australia Pty Ltd, RCG CBD Pty Ltd, Bluemine Pty Ltd, Diamondwish Pty Ltd and Rackforce Pty Ltd (all in liq) (No 2) [2021] NSWSC 1161
Knox v Peacock [2024] NSWSC 976
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85
Middlebrook v Middlebrook (1962) 36 ALJR 216
Perpetual Trustee v Baker [1999] NSWCA 244
Re Estate of Hodges (decd); Shorter v Hodges (1988) 14 NSWLR 698

Category: Costs
Parties: Geoffrey Knox (Plaintiff/First Cross-Defendant)
Isabella Agnes Peacock (Defendant/Cross-Claimant)
Sydney Opera House Trust (Second Cross-Defendant)
Representation:
Counsel:
A Stevens (Plaintiff/First Cross-Defendant)
M Gaven/B Dean (Defendant/Cross-Claimant)
Solicitors:
Bartier Perry (Plaintiff/First Cross-Defendant)
McPherson Park Lawyers (Defendant/Cross-Claimant)

File Number(s): 2021/292264

JUDGMENT

For reasons given by me on 8 August 2024, the plaintiff successfully propounded the will of the late Mrs Eva Marie Easton dated 19 November 2020: Knox v Peacock [2024] NSWSC 976. I rejected Mrs Peacock’s case that Mrs Easton lacked capacity to make the 2020 Will. I also indicated that, even if I had been inclined to accept her contention that Mrs Easton lacked capacity to make the 2020 Will, I would not have been prepared to find that Mrs Easton had capacity to make the alternative will propounded by Mrs Peacock, being the 2019 Will. I therefore made orders in accordance with those sought by Mr Knox in his statement of claim dated 28 November 2022 and dismissed Mrs Peacock’s amended first cross-claim dated 17 April 2023.
These reasons deal with the question of costs following my earlier judgment and, as such, should be read in the light of those reasons.
The plaintiff says that the ordinary rule should apply and that costs should follow the event. He also seeks an order that Mrs Peacock pay costs on…

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 Knox v Peacock (No 2)

Details

AGLC: Knox v Peacock (No 2) [2024] NSWSC 1372
Case: [2024] NSWSC 1372
Decision Date: 30 October 2024

CaseChat Overview and Summary

In Knox v Peacock (No 2), the respondents, who were beneficiaries of the deceased’s estate, sought to challenge the testamentary capacity of the deceased. The respondents argued that the deceased lacked testamentary capacity when he made his will. The appellants, who were other beneficiaries of the estate, successfully opposed the challenge, and the respondents were ordered to pay the appellants' costs. The respondents appealed the costs order on the basis that the appellants had made an unreasonable Calderbank offer and that the challenge to the deceased's capacity was reasonable. The appellants cross-appealed on the basis that the respondents' costs should be paid out of the estate because their challenge to the deceased's capacity was unreasonable.

The primary legal issue before the court was whether the respondents' costs should be paid out of the estate. This hinged on whether the respondents' challenge to the deceased's testamentary capacity was reasonable. The court also had to determine whether the appellants' Calderbank offer was reasonable. A secondary issue was whether the respondents' costs should be paid by the appellants if the challenge was found to be reasonable.

The court found that the respondents' challenge to the deceased's testamentary capacity was not reasonable. The court found that the challenge was not based on any new evidence, and that the respondents had not provided any cogent argument as to why the deceased lacked capacity. The court found that the appellants' Calderbank offer was reasonable, and that the respondents' costs should not be paid out of the estate. The court found that the respondents' costs should be paid by the appellants because the respondents' challenge was not reasonable. The court found that the appellants were entitled to their costs of the appeal and cross-appeal.

The court ordered that the respondents pay the appellants' costs of the appeal and cross-appeal. The court found that the respondents' challenge to the deceased's testamentary capacity was not reasonable and that the appellants' Calderbank offer was reasonable. The court found that the respondents' costs should be paid by the appellants, and that the respondents were not entitled to their costs out of the estate. The court dismissed the appeal and allowed the cross-appeal.

Orders