Kovacs v Fogarty (No 2)

[2007] ACTSC 40

In the matter of the Estate of IAN PATRICK FOGARTY

EMMA ROSE KOVACS v  GREGORY PATRICK FOGARTY

and LORRAINE HELEN FOGARTY (No. 2)

[2007] ACTSC 40 (22 June 2007)

PRACTICE & PROCEDURE – Costs – probate jurisdiction and costs to follow event.

Family Law Act 1975

Re Estate of Hodges, Shorter v Hodges (1988) 14 NSWLR 698

Re The Black Stump Enterprises Pty Ltd and Associated Companies (No 2) [2006] NSWCA 60

No. P 374 and 410 of 2006

Judge              Connolly J
Supreme Court of the ACT

Date                22 June  2007

IN THE SUPREME COURT OF THE       )
  )          No. P 374 and 410 of  2006
AUSTRALIAN CAPITAL TERRITORY    )

In the matter of the Estate of IAN PATRICK FOGARTY deceased late of 30/47 Blackall Street, Barton in the Australian Capital Territory

BETWEEN:EMMA ROSE KOVACS

Plaintiff

AND:GREGORY PATRICK FOGARTY and LORRAINE HELEN FOGARTY

Defendants

ORDER

Judge:  Connolly J
Date:  22 June 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. In matter No. P 374 of 2006, the plaintiffs pay the defendant’s costs on the ordinary basis;  and

1. In matter P 410 of 2006, the defendants pay the plaintiff’s costs on the ordinary basis.

1. This is an application for costs following the determination of conflicting claims concerning the estate of the late Ian Patrick Fogarty, who passed away on 6 June 2006 (In the matter of the Estate of Ian Patrick Fogarty:  Emma Rose Kovacs v Gregory Patrick Fogarty and Lorraine Helen Fogarty [2007] ACTSC 24 (20 April 2007)). He was a young man, who died suddenly. He was married at the time of his death, but he and his wife had separated, and had engaged solicitors to discuss a property settlement agreement preparatory to a divorce. Mr Fogarty had made arrangements to nominate his parents as the beneficiary on a superannuation policy, but no will was ever identified. Following his death, competing applications were brought in relation to his estate, by his lawful widow, and by his parents. His parents claimed that Mr Fogarty had told them that he had made a will in which all property would go to them. No person was able to say that they had sighted such a document.

1. The competing applications were heard on 26 and 27 February 2007, and I delivered a judgment on 20 April 2007 in which I held that the parents had not established the existence of a lost will to the requisite standard, and accordingly their claim would be dismissed, and the widow would be entitled to the estate.

1. The parents’ application was supported by material which, as I stated in my original judgment, “involved voluminous irrelevant affidavits pouring bile on his wife, which have added considerably to the costs of proceedings”. Accordingly, I did not make the form of costs order which, if not the norm, then is certainly not uncommon in these types of applications, that is that the estate bear all of the costs of the proceedings. Rather, I gave the parties leave to…