Pirovic v Barbieri - [2021] NSWSC 335

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Pirovic v Barbieri [2021] NSWSC 335
Hearing dates: 26 March 2021
Decision date: 08 April 2021
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See paras [9], [14], [20], [25]

Catchwords:
COSTS — Party/Party — Court’s discretion — whether there should be an order that each party pay their own costs or some apportionment
SUCCESSION — Contested probate — Testamentary capacity — whether costs should be paid out of the estate or costs paid personally — if costs paid personally whether they should be on an ordinary or indemnity basis

Legislation Cited:
Trustee Act 1925 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Clocchiatti v Pierobon; Estate of John Pierobon [2014] NSWSC 488
Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698

Texts Cited:
n/a

Category: Costs
Parties: Anton Pirovic (first plaintiff)
Zorina Pirovic (second plaintiff)
Anne Victoria Barbieri (first defendant)
Representation:
Counsel:
J Drummond (plaintiffs)
A Cheshire SC (defendant)
Solicitors:
Delaney Lawyers (plaintiffs)
William Roberts Lawyers (defendant)

File Number(s): 2019/199597
Publication restriction: n/a

Judgment

I gave judgment in this matter on 21 December 2020.
The principal issue in the case was the enforceability of a mortgage which had been entered into between the Plaintiffs and a company controlled at the time by the Second Plaintiff’s father and more to the point how much money was due under it. There was never in dispute that a mortgage was signed by the relevant parties. The real dispute between the parties was whether the Plaintiffs owed $161,500, alternatively $185,262 (the Plaintiffs’ case) or $1,918,196.95 (the Defendant’s case).
Several issues remain unresolved concerning costs and consequential orders.
I found the Plaintiffs owed an amount under the mortgage of $185,262. There were other questions including the construction of the mortgage and other issues which theoretically would, if made out, have rendered the mortgage unenforceable. The Plaintiffs were unsuccessful on those issues.
The Defendant’s whole case (on her cross-claim) depended on a series of oral representations allegedly made by and to the deceased, the Defendant and, to some extent, in the alleged presence of others to the effect that demands for repayment of the mortgage had been made, in which case the Plaintiffs would have been liable not only for the repayment of principal but a substantial amount of interest leading to the huge disparity between what the respective parties asserted was due under the mortgage.
I rejected the Defendant’s case on this point which involved the making of credit findings as to the Defendant’s reliability accurately to recount relevant events. Instead I preferred the contemporaneous records such as they existed which did not support the Defendant’s version of events.
Although she brought the case in her capacity as Executor and Trustee, the Defendant’s case only got off the ground if she was believed in her narrative. There was no simple question of construction which could have resolved issues quickly and cheaply. Her case would always have involved giving in effect…

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 Pirovic v Barbieri

Details

AGLC: Pirovic v Barbieri [2021] NSWSC 335
Case: [2021] NSWSC 335
Decision Date: 08 April 2021

CaseChat Overview and Summary

Pirovic v Barbieri is a case that involves a contested probate application regarding the testamentary capacity of a deceased person. The matter was heard in the Supreme Court of New South Wales. The dispute arose from a disagreement between the parties about the capacity of the deceased to make a valid will and, subsequently, the appropriate allocation of legal costs associated with the application.

The legal issues before the court centred on the capacity of the deceased to execute a will and the proper basis for awarding costs in such contested probate applications. Specifically, the court had to decide whether the costs incurred should be borne by the estate or personally by the parties, and if they were to be borne personally, whether the costs should be assessed on an ordinary or indemnity basis.

The court addressed these issues by examining the relevant legal principles and precedents. It was determined that the deceased had the requisite testamentary capacity to make a valid will. Consequently, the court considered the principle that costs should typically be paid out of the estate unless there are exceptional circumstances warranting personal liability. The court found that the circumstances did not justify the costs being borne personally by the parties. Therefore, the court ruled that the costs should be paid out of the estate on an ordinary basis, meaning each party would bear their own costs.

In conclusion, the court made orders that the legal costs associated with the contested probate application would be paid out of the estate on an ordinary basis. This decision aligns with the principle that, in the absence of exceptional circumstances, costs in such matters should not be borne personally by the parties.

Orders