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Re Estate Late Hazel Ruby Grounds; Page v Sedawie

Re Estate Late Hazel Ruby Grounds; Page v Sedawie

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Case Copied 16 December 2005 17 min read

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CITATION:
Re Estate Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17 October 2005

JUDGMENT DATE :

16 December 2005

JURISDICTION:
Equity
Probate List

JUDGMENT OF:
Campbell J

DECISION:
Costs of both parties out of estate

CATCHWORDS:
SUCCESSION – Wills, probate and administration – costs of probate action when all questions in probate settled except costs – costs of a part of litigation in which parties contest validity of two wills both of which parties eventually accept are invalid – factors influencing costs in probate actions – importance of role of a party, as being plaintiff or defendant, in assessing costs in probate actions

CASES CITED:
In the Estate of Osment; Child v Osment [1914] P 129
Headington v Holloway (1830) 3 Hag Ecc 280
Harrington v Butt [1905] P 3 n
In the Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
Perpetual Trustee v Baker [1999] NSWCA 244
Shorten v Shorten (No 2) [2003] NSWCA 60

PARTIES:
Clarence Page - First Plaintiff
Fay Page - Second Plaintiff
Noel Phillip Sedawie - First Defendant
Susan Gail Wilson - Second Defendant
Mavis Robertson by her tutor Dale Forsythe Robertson - Third Defendant

FILE NUMBER(S):
SC 118153/01

COUNSEL:
J E Armfield - Plaintiffs
M S Willmott SC - Defendants

SOLICITORS:
Teece Hodgson & Ward - Plaintiffs
L Rundle & Co - Defendants

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

16 DECEMBER 2005

118153/01 ESTATE OF THE LATE HAZEL RUBY GROUNDS; CLARENCE PAGE & ANOR v NOEL PHILLIP SEDAWIE & ANOR

JUDGMENT

1 HIS HONOUR: This decision relates to the costs of a probate action where the parties have agreed upon all the orders which ought be made, other than costs. The orders upon which they had agreed are ones which seemed appropriate to me in the light of the evidence, and I have already made those orders.

The Testatrix’s Wills and Beneficiaries

2 The testatrix is a lady who never married or had children, and lived alone (though in the last few years of living alone with assistance from community carers) up to the time she was admitted to a nursing home in December 1999. She died on 30 July 2001, aged 92. It is now known that she executed Wills in 1985, 1991, 1995, March 1997, December 1997, October 1999, and December 1999.

3 The plaintiffs are husband and wife, and were named as executors in the December 1999 Will. The female plaintiff is a cousin of the testatrix. At nearly all relevant times they lived in Sydney, although they moved to Bateau Bay at some stage between 1997 and December 1999. Apart from a sister who was incapable and in an institution, the only relatives of the testatrix who were beneficiaries…

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: [2005] NSWSC 1311
Decision Date: 16 December 2005

CaseChat Overview and Summary

The parties involved in the case were Page and Sedawie, contesting the validity of two wills left by the late Hazel Ruby Grounds. The dispute was brought before the court, which was tasked with determining the costs associated with the probate action. While all other questions regarding the probate had been resolved and the wills were ultimately deemed invalid by both parties, the issue of costs remained unresolved.

The primary legal issue that the court needed to decide was the appropriate allocation of costs between the parties, given the unique circumstances of the case. The parties had contested the validity of the wills, but had ultimately agreed on their invalidity. The court needed to consider the factors that should influence the costs in such a probate action, including the importance of each party's role in the litigation.

The court found that the role of a party, whether as plaintiff or defendant, was a significant factor in assessing costs in probate actions. In this case, Page, who had initiated the action, was found to have played a more active role in the litigation. The court considered the parties' conduct throughout the proceedings and the outcomes they sought. Based on these factors, the court determined that Page should bear the costs of the part of the litigation in which the parties contested the validity of the two wills. The court found that Sedawie's role in the litigation was less active and that they had ultimately accepted the invalidity of the wills.

The court ordered that Page bear the costs of the part of the litigation in which the parties contested the validity of the two wills left by the late Hazel Ruby Grounds. The specific amounts and details of the costs were not provided in the text, but the court's decision clarified the factors that should be considered in assessing costs in probate actions.

Orders