Pinniger v Stone - [2012] NSWCA 73

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Pinniger v Stone & Anor [2012] NSWCA 73
Hearing dates: 21 March 2012
Decision date: 21 March 2012
Before: Beazley JA
Whealy JA
Decision:
Leave to appeal refused, with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: LEAVE TO APPEAL - Application for grant of probate in solemn form of testator's will - challenge by executor - proper basis for ordering indemnity costs against unsuccessful executor - whether there was a miscarriage of the discretion to grant cost orders - House v R - leave to appeal refused.
Cases Cited: - House v R [1936] HCA 40; 55 CLR 499
Category: Procedural and other rulings
Parties: Wayne Jon Pinniger (Applicant)
Karen Patricia Stone (First Respondent)
Kerry Ann Drabsch (Second Respondent)
Representation: Counsel:
L. Ellison SC, K. Morrissey (Applicant)
Ms J.M. Sandford (Respondent)
Solicitors:
Coode & Corry (Applicant)
Matthews Williams Solicitors (Respondents)

File Number(s): 2009/291134
Decision under appeal

Citation:

[2011] NSWSC 1148

Date of Decision:

2011-09-27 00:00:00

Before:

Nicholas J

File Number(s):

2009/291134

Judgment

WHEALY JA - Ex tempore - on leave application: The proceedings in the Equity Division were an application by two executors for a grant in solemn form of the testator's will. The defendant was the third executor who maintained a cross-claim asserting that a document which had been prepared by the testator formed an alteration to or a partial revocation of the will. The defendant, who was the applicant in this matter, sought an order that probate of the will and part of the document to which I have made reference be granted to the three executors.

These proceedings were heard before Nicholas J. On 29 July his Honour dismissed the amended cross-claim and ordered that there be a grant to the two plaintiffs of probate in solemn form of the will of the testator, which had been made on 2 May 2008. His Honour found that at all times the testator had well understood the distinction between his personal property and the assets owned by the two companies mentioned in the document. He had well understood, his Honour found, that the latter assets were not his to dispose of by will. Finally, his Honour found that the document amounted to a confirmation by the testator of his will. His testamentary intentions, accordingly, for the disposition of his personal estate, remained as stated in the will.

His Honour reserved the issue of costs. That issue was taken up in a further hearing on 17 August 2011. On 27 September 2011 his Honour made the following orders:

"(1) the defendant cross-claimant pay the…

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 Pinniger v Stone

Details

AGLC: Pinniger v Stone [2012] NSWCA 73
Case: [2012] NSWCA 73
Decision Date: 21 March 2012

CaseChat Overview and Summary

This matter concerned an application for leave to appeal from a decision of the primary judge regarding the grant of probate in solemn form of a testator's will. The applicant, who was the executor of the will, sought to challenge the primary judge's orders, particularly concerning costs.

The central legal issues before the Court of Appeal were whether the primary judge had erred in ordering indemnity costs against the unsuccessful executor and whether there had been a miscarriage of discretion in the making of that costs order. The Court was required to consider the principles governing the award of indemnity costs in such circumstances and to assess whether the primary judge's decision was demonstrably wrong.

The Court of Appeal, comprising Beazley and Whealy JJA, applied the principles established in *House v R* to review the discretion exercised by the primary judge. After considering the arguments, the Court concluded that there was no basis to interfere with the primary judge's decision. Consequently, leave to appeal was refused. The unsuccessful applicant was ordered to pay the costs of the application.

Orders

Orders of the court

Leave to appeal refused, with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Pinniger v Stone & Anor [2012] NSWCA 73
Hearing dates:	21 March 2012
Decision date:	21 March 2012
Before:	Beazley JA Whealy JA
Decision:	Leave to appeal refused, with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	LEAVE TO APPEAL - Application for grant of probate in solemn form of testator's will - challenge by executor - proper basis for ordering indemnity costs against unsuccessful executor - whether there was a miscarriage of the discretion to grant cost orders - House v R - leave to appeal refused.
Cases Cited:	- House v R [1936] HCA 40; 55 CLR 499
Category:	Procedural and other rulings
Parties:	Wayne Jon Pinniger (Applicant) Karen Patricia Stone (First Respondent) Kerry Ann Drabsch (Second Respondent)
Representation:	Counsel: L. Ellison SC, K. Morrissey (Applicant) Ms J.M. Sandford (Respondent) Solicitors: Coode & Corry (Applicant) Matthews Williams Solicitors (Respondents)
File Number(s):	2009/291134
Decision under appeal	Citation: [2011] NSWSC 1148 Date of Decision: 2011-09-27 00:00:00 Before: Nicholas J File Number(s): 2009/291134