Re Sebasio (No. 2)

The case of Re Sebasio (No. 2) involved an applicant who had successfully applied for probate of a will. The respondent, who was self-represented, was unsuccessful in their opposition to the probate. The respondent also rejected an offer of compromise made by the applicant. The primary issue before the court was whether the applicant should be awarded costs on an indemnity or standard basis. The applicant sought an indemnity costs order, arguing that the respondent's opposition was not only without merit but also unreasonable and vexatious. The court was required to consider the principles governing costs in probate matters and whether the respondent's conduct warranted indemnity costs.

The court examined the conduct of the respondent throughout the proceedings. It noted that the respondent was self-represented and had rejected a reasonable offer of compromise. The court observed that while the respondent's opposition was unsuccessful, there were no grounds to find that their conduct was vexatious or without merit to the extent that it warranted indemnity costs. The court held that the respondent's opposition, although unsuccessful, had some basis in law and fact, and therefore, the standard basis for costs was more appropriate. The court emphasised that indemnity costs should only be awarded in exceptional circumstances where the conduct of the party opposing the application was egregious.

Consequently, the court ordered that the respondent pay the applicant's costs of the proceedings from 24 April 2020 on the standard basis. The court also specified that, except for the costs of notification of proceedings to Margaret Cowley, the applicant’s costs of the proceeding were to be paid from the estate of Thomas Sebasio on the indemnity basis. This decision balanced the need to protect applicants in probate proceedings from unreasonable opposition while also ensuring that unsuccessful parties are not unduly penalised for pursuing a legitimate legal position.