Lewis v Lewis (No 2) - [2020] NSWSC 1519

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lewis v Lewis (No 2) [2020] NSWSC 1519
Hearing dates: 29 October 2020
Date of orders: 29 October 2020
Decision date: 29 October 2020
Jurisdiction: Equity - Probate List
Before: Parker J
Decision:
See [43]

Catchwords:
COSTS – party/party – general rule that costs follow the event – application of rule and discretion – plaintiff’s propounded will and codicils admitted to probate but disputed clauses omitted – defendant substantially successful – interest
COSTS – payment out of estate – partially successful defendant acting in interests of residuary beneficiaries – form of order – estate subrogated to defendant’s party/party costs order against plaintiff

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 101(4), 101(5)

Cases Cited:
National Trustees Executors & Agency Co of Australasia Ltd v Barnes (1941) 64 CLR 268
Re Estate of Paul Francis Hodges (1988) 14 NSWLR 698
Tjiong v Tjiong (No 2) [2018] NSWSC 1981

Category: Costs
Parties: David Grant Lewis (Plaintiff/Cross Defendant)
Peter Howarth Lewis (Defendant/Cross Claimant)
Representation:
Counsel:
C Vindin (Plaintiff/Cross Defendant)
LJ Ellison SC (Defendant/Cross Claimant)
Solicitors:
Walker and White (Plaintiff/Cross Defendant)
L Rundle & Co Solicitors (Defendant/Cross Claimant)

File Number(s): 2017/130576
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript; issued 3 November 2020

I gave my judgment in this contested probate litigation on 25 September: Lewis v Lewis [2020] NSWSC 1306. I must now make orders to give effect to my conclusions and to deal with costs. This judgment assumes familiarity with, and uses the same naming conventions, as the principal judgment.
The plaintiff, David, propounded the testator’s will dated 19 December 2014 together with a codicil dated 6 August 2015. The defendant, Peter, resisted the grant of probate for those instruments and propounded (by cross-claim) the testator’s will dated 22 June 2011 or alternatively her will dated July 2010.
As an alternative to the December 2014 will and the August 2015 codicil, David propounded various other testamentary instruments which are described in the judgment. The description need not be repeated here.
I found that the December 2014 will and the August 2015 codicil should be admitted to probate but in each case only as to part. Following some debate between counsel the form of the orders required to give effect to this has been settled.
The December 2014 will revoked the testator's previous testamentary dispositions. My conclusion that it should be admitted to probate (even if only in part) necessarily meant that the cross-claim failed. It must be dismissed.
I will also order that David's claim be otherwise dismissed. Although I expressed a different view in argument, I think I should make such an order to reflect my conclusion that the other instruments propounded by David (and the clauses of the December 2014 will and the August 2015 codicil that I excluded from probate) should not be admitted to probate.
The major issue debated between counsel was costs. I will deal with this in two stages: First, orders for costs…

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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Details

Case: [2020] NSWSC 1519
Decision Date: 29 October 2020

CaseChat Overview and Summary

The case of Lewis v Lewis (No 2) involved a dispute between the parties over the interpretation of clauses in a will and codicils. The matter was heard in the Supreme Court of New South Wales. The plaintiff, the executor of the estate, sought to have certain clauses admitted to probate, while the defendant contested the validity of these clauses. The defendant argued that the clauses were invalid and should not be included in the will.

The court was required to determine whether the disputed clauses in the will and codicils should be admitted to probate and, if so, whether the plaintiff was entitled to costs. The court also had to consider the appropriate costs order given that the defendant was partially successful in their challenge to the clauses. The court needed to balance the general rule that costs follow the event with the discretion to award costs in equity.

The court found that the plaintiff was substantially successful in having the will and codicils admitted to probate, despite the omission of the disputed clauses. However, the court also recognised that the defendant was substantially successful in their challenge to certain clauses, which were omitted from the will. The court exercised its discretion and ordered that the defendant be subrogated to the plaintiff's party/party costs order against the plaintiff. This meant that the defendant, who was acting in the interests of the residuary beneficiaries, would be reimbursed for their costs from the estate, rather than the plaintiff having to pay them. The court also ordered that the defendant be paid interest on the costs from the date of the application.

Orders