Magiera v Igor Cekan (No 2) - [2023] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
MAGIERA & ANOR v IGOR CEKAN & ANOR (No 2)
[2023] SASC 47
Judgment of the Honourable Justice Stanley
31 March 2023
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - PARTIAL SUCCESS
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - COSTS
The respondent in this matter brought an application for the revocation of a grant of probate in solemn form of a will of the deceased made in 2016, on the ground that the deceased made a subsequent valid will in 2018.
The applicants are the executors of the 2016 will. The respondent is the residual beneficiary of the 2018 will.
The Court dismissed the application for revocation. The parties now seek orders for costs.
The applicants seek orders that their costs of and incidental to the probate revocation application be paid by the respondent on an indemnity basis and that the applicants are entitled to receive any shortfall from the deceased’s estate.
The respondent seeks an order that the applicants have their costs on a standard basis reduced by 50 percent having regard to their failure to succeed on the awareness issue.
Held:
1. The respondent is to pay the applicants’ costs of and incidental to the revocation application on an indemnity basis.
A, DC v Prince Alfred College Inc (No. 2) [2016] SASCFC 27; Dodds Family Investments Pty Ltd v Lane Industries Ltd (1993) 26 IPR 261; Fielder v Burgess [2014] SASC 98; Jams & Ors v Surf Road Nominees Pty Ltd & Ors (No. 2) [2005] NSWCA 296; Miller v Miller (No. 2) [2017] SASC 53; Mitchell v Gard (1863) 3 Sw & Tr 275; Rawley Pty Ltd ACN 009 027 454 v Bell (No. 3) [2007] FCA 1429; Roche v Roche & Anor (No. 2) ; Roche v Roche & Anor (No. 2) [2017] SASC 75, considered.

MAGIERA & ANOR v IGOR CEKAN & ANOR (No 2)
[2023] SASC 47
Civil
STANLEY J:

The respondent in this matter brought an application for the revocation of a grant of probate in solemn form of the testator’s 2016 will. He did so in order to propound a 2018 will. The applicants are the executors appointed under the 2016 will. The respondent is the residual beneficiary under the 2018 will.
The principal asset of the deceased’s estate is a residential property at Trimmer Parade, Woodville West.
The Court dismissed the application for revocation. The parties now seek orders for costs.
The applicants also sought an order for possession of the Trimmer Parade property which was occupied by the respondent. The applicants were the registered proprietors of the property and were entitled to possession. Judge Dart granted a possession order but its execution was stayed pending the outcome of the application for revocation. In the circumstances I consider the issue of the costs of the possession proceedings should be heard and determined by Judge Dart.

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 Magiera v Igor Cekan (No 2)

Details

AGLC: Magiera v Igor Cekan (No 2) [2023] SASC 47
Case: [2023] SASC 47
Decision Date

CaseChat Overview and Summary

The applicants, who are the executors of the 2016 will of the deceased, sought orders for costs against the respondent, who is the residual beneficiary under a purported 2018 will. The respondent had brought an application for the revocation of the grant of probate in solemn form of the 2016 will, which the Court dismissed. The applicants sought an order that their costs be paid by the respondent on an indemnity basis, while the respondent sought a reduction in the applicants' costs on a standard basis by 50 percent due to the applicants' failure to succeed on the awareness issue. The Court held that the respondent should pay the applicants' costs on an indemnity basis. The Court found that the applicants' conduct was not self-interested and that they were merely fulfilling their duties as executors of the 2016 will. The Court also found that it was important to protect the estate from depletion as a result of the revocation application.

The Court considered the discretionary factors that apply to the exercise of the costs discretion in probate litigation. The Court found that in the circumstances of this case, it was appropriate that costs should follow the event and that the respondent should pay the applicants' costs on an indemnity basis. The Court found that the applicants' conduct was not unreasonable, and that the basis upon which the applicants acted was to protect the estate. The Court also found that it was important to recognise the applicants' conduct in this matter, which was not self-interested. The Court held that the position of the applicants as executors should be protected by an order that costs follow the event on an indemnity basis rather than descending into a fragmentation of costs on an issue-by-issue basis that can only have the effect of depleting the deceased's estate at the expense of the intended beneficiaries.

The Court further held that the respondent is a private party who sought to advance his claim to the testator's bounty for his private financial benefit as the residual beneficiary under the purported 2018 will. The Court found that the respondent's conduct was unreasonable, and that he should bear the costs of the litigation. The Court held that the respondent should pay the applicants' costs of and incidental to the revocation application on an indemnity basis. The Court also held that the applicants are entitled to receive any shortfall from the deceased's estate.

The final orders of the Court were that the respondent is to pay the applicants' costs of and incidental to the revocation application on an indemnity basis and that the applicants are entitled to receive any shortfall from the deceased's estate. The Court held that the respondent is to pay the applicants' costs of and incidental to the revocation application on an indemnity basis. The Court also held that the applicants are entitled to receive any shortfall from the deceased's estate.

Orders