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Re Estate Condon; Battenberg v Phillips

Re Estate Condon; Battenberg v Phillips

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Case Copied 21 December 2017 68 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813
Hearing dates: 9 October and 10 November 2017 andWritten Submissions
Date of orders: 21 December 2017
Decision date: 21 December 2017
Before: Lindsay J
Decision:
Orders made (pursuant to the Uniform Civil Procedure Rules 2005 NSW, rule 42.21) for a plaintiff, ordinarily resident outside Australia, to provide security for the costs of probate proceedings

Catchwords: PROBATE – Costs – Security for Costs – Plaintiff ordinarily resident outside Australia – No assets in Australia – Principles applicable – Order for security made
COSTS – Security for costs – Probate proceedings – Plaintiff ordinarily resident outside Australia – No assets in Australia – Principles applicable – Security ordered
Legislation Cited: Civil Procedure Act 2005 NSW
Uniform Civil Procedure Rules 2005 NSW
English Civil Procedure Rules
Cases Cited: Bates v Messner (1967) 67 SR (NSW) 187
Boyce v Bunce [2015] NSWSC 1924
Chamberlain Group Pty Ltd v Kids for Life Academy Pty Ltd [2015] NSWCA 241; 18 BPR 35,591
Dickman v Holley [2013] NSWSC 18
Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786
Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Gardiner v Hughes [2017] VSCA 157
Gertsch v Roberts; The Estate of Gertsch (1993) 35 NSWLR 631
Gray v Hart; Estate of Harris (No. 2) [2012] NSWSC 1562
Guardian Trust and Executors Company of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115
Hookway v Hookway [2017] TASFC 4
Hyland v Burbidge (unreported, NSWSC PD, Powell J, 23 October 1992)
In re Egel; Farmers’ Co-Operative Executors and Trustees Ltd v Sickert [1939] SASR 477
In re Emery, deceased; Emery v Emery [1923] P 184
In the goods of William Loveday [1900] P 154
Lo Surdo v Public Trustee [2003] NSWSC 837
Mitchell v Gard (1863) 3 SW & TR 257; 164 ER 1280
Osborne v Smith (1960) 105 CLR 153
Rajski v Computer Manufacture & Design Pty Ltd [1982) 2 NSWLR 443; [1983] 2 NSWLR 122
Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107
Re Estate Pierbon, Deceased [2014] NSWSC 387
Re Fuld [1965] P 405
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Rennie v Massie (1866) 1 P&D 118
Rose v Epstein [1974] 1 WLR 1565
Singer v Berghouse [1993] HCA 35; (1993) 67 ALJR 708; 114 ALR 521
Tobin v Ezekiel (2012) 83 NSWLR 757
Willey v Synan (1935) 54 CLR 175
Williamson v Spelleken [1977] Qd R 152
Texts Cited:
Law of Costs (LexisNexis Butterworths, Australia, 3rd ed, 2013
Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Sweet & Maxwell, London, 20th ed, 2013), at paragraph [40-15]
RS Geddes, CJ Rowland and P Studdert, Wills, Probate And Administration Law in New South Wales (LBC Information Services, Sydney, 1996)
Mason and Handler’s Succession Law And Practice NSW (LexisNexis Butterworths, 1985, Loose Leaf Service
Hastings Weir,…

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: [2017] NSWSC 1813
Decision Date: 21 December 2017

CaseChat Overview and Summary

The matter of Re Estate Condon; Battenberg v Phillips involved the estate of a deceased person and the distribution of their assets. The dispute arose between the plaintiff, who was ordinarily resident outside Australia and had no assets within the jurisdiction, and the defendant, who was a party to the probate proceedings. The case was heard in the Supreme Court of Victoria, where the primary focus was on the issue of security for costs in probate proceedings. The court was required to determine the principles that should be applied when a plaintiff, who was ordinarily resident outside Australia and had no assets in Australia, sought to have security for costs ordered against them.

The court examined the principles applicable to security for costs in cases involving plaintiffs who were ordinarily resident outside Australia and had no assets within the jurisdiction. The court noted that the general rule is that a plaintiff must provide security for the defendant's costs in such cases. However, the court also recognised that there may be exceptional circumstances where security should not be ordered. The court held that the principles applicable to probate proceedings were no different from those in other cases. The court considered factors such as the plaintiff's ability to pay costs, the likelihood of success of the claim, and the public interest in ensuring that the proceedings were not an abuse of the court process.

After considering the evidence and arguments presented by both parties, the court ordered the plaintiff to provide security for the defendant's costs. The court found that the plaintiff, who was ordinarily resident outside Australia and had no assets in Australia, was unable to demonstrate exceptional circumstances that would justify not ordering security. The court emphasised that the principles applied were consistent with those in other cases and that the plaintiff's lack of assets in Australia did not absolve them of the requirement to provide security for costs. The court concluded that the order for security was necessary to ensure that the proceedings were not an abuse of the court process and to protect the defendant from potential financial loss.

Orders