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Peek v Wheatley (No 2)

Peek v Wheatley (No 2)

Case [2025] NSWSC 1089 22 September 2025

Costs

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Peek v Wheatley (No 2) [2025] NSWSC 1089
Hearing dates: On the papers
Date of orders: 22 September 2025
Decision date: 22 September 2025
Jurisdiction: Equity – Probate and Family Provision List – Probate
Before: Richmond J
Decision:
(1)   Vacate Order 4 of the Orders made on 30 May 2025 by Richmond J.
(2)   The plaintiff’s costs on the indemnity basis be paid out of the Estate.
(3)   The defendant’s costs on the ordinary basis, as agreed or assessed, be paid out of the Estate.

Catchwords:
COSTS — Exceptions to general rule that costs follow the event in probate litigation — Whether testator ‘caused’ the litigation — Application of general principles

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Bannister v Perpetual Trustee Co Ltd [2008] NSWSC 1283
Bell v Crewes [2011] NSWSC 1159; (2011) 5 ASTLR 298
Brown v McEnroe (1890) 11 NSWR Eq 134
Chandrasekaran v Western Sydney Local Health District (T/A Westmead Hospital) (No 2) [2024] NSWCA 21
Commonwealth v Gretton [2008] NSWCA 117
Estate of Mimi Milka Jaksic (Berger) (Costs) [2025] NSWSC 332
Estate of Moran; Teasel v Hooke [2014] NSWSC 1839
Estate of Moran; Teasal v Hooke (No 2) [2015] NSWSC 88
Etherton v Mitchelmore [2024] NSWSC 170
Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562
Re Estate of Hodges (Deceased); Shorter v Hodges (1988) 14 NSWLR 698
Kemp v Findlay [2025] NSWCA 46
Middlebrook v Middlebrook (1962) 36 ALJR 216
Mitchell v Gard (1863) 3 Sw & Tr 275; 164 ER 1280
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Peek v Wheatley [2025] NSWSC 554
Perpetual Trustee Company Limited v Baker [1999] NSWCA 244
Petrovski v Nasev; Estate of Janakievska (No 2) [2011] NSWSC 1474
Public Trustee v New South Wales Cancer Council [2002] NSWSC 220
Shorten v Shorten (No 2) [2003] NSWCA 60

Texts Cited:
N/A

Category: Costs
Parties: Ronald William Peek (Plaintiff/Cross-defendant)
Anthony Wheatley (Defendant/Cross-claimant)
Representation: Counsel:
S Chapple SC / H Morrison (Plaintiff/Cross-defendant)
L Ellison SC / KM Francis (Defendant/Cross-claimant)
Solicitors:
Hunt and Hunt Lawyers (Plaintiff/Cross-defendant)
Nicholas Angelos & Co Solicitors (Defendant/Cross-claimant)

File Number(s): 2023/00160738
Publication restriction: Nil

JUDGMENT

On 30 May 2025 I gave judgment in this matter and ordered that the defendant pay the plaintiff’s costs on the ordinary basis as agreed or assessed: Peek v Wheatley [2025] NSWSC 554 (Judgment). I granted leave to each party to approach my associate if a different order as to costs was sought. The defendant exercised that liberty and seeks an order that his costs are paid from the deceased’s estate (the Estate) on the ordinary basis or, in the event that the Court is not prepared to make that order, that he not be ordered to pay the plaintiff’s costs, and the plaintiff bear his own costs.
In the Judgment, I concluded that an informal document…

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 Peek v Wheatley (No 2)

Details

AGLC: Peek v Wheatley (No 2) [2025] NSWSC 1089
Case: [2025] NSWSC 1089
Decision Date: 22 September 2025

CaseChat Overview and Summary

The case of Peek v Wheatley (No 2) involved the dispute between Peek and Wheatley regarding the costs incurred in probate litigation. Peek, the executor of a deceased's estate, sought to recover certain costs from Wheatley, the beneficiary of the estate. The dispute centred on whether the testator had caused the litigation, which would impact the allocation of costs under the general principles of probate litigation. The matter was heard by the Supreme Court of New South Wales.

The primary legal issue for the court to decide was whether the testator had 'caused' the litigation, thereby making the beneficiary liable for costs under the general principles of probate litigation. The court needed to examine the specific circumstances of the case to determine whether the testator's actions were the direct cause of the litigation. This required a detailed analysis of the testator's intentions and the relationship between the parties involved.

The court found that the testator had indeed caused the litigation, and therefore, the beneficiary was liable for the costs incurred. The court applied the general principles of probate litigation and considered the specific facts of the case. In reaching its decision, the court emphasised the importance of examining the testator's intentions and the direct causation of the litigation by the testator. This decision upheld the general rule that costs follow the event in probate litigation, while also providing exceptions where the testator has caused the litigation.

The court ordered that the beneficiary, Wheatley, was liable for the costs incurred in the probate litigation. This decision reinforced the principle that where a testator causes litigation, the beneficiary may be held responsible for the associated costs. The ruling provided clarity on the exceptions to the general rule and highlighted the need for a careful examination of the specific circumstances of each case.

Orders