Roebuck v Smoje - [2001] WASC 95

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: ROEBUCK -v- SMOJE & ORS [2001] WASC 95

CORAM: HASLUCK J

HEARD: 30 MARCH 2001

DELIVERED : 30 MARCH 2001

FILE NO/S: CIV 1309 of 1998

BETWEEN: DONALD JOHN ROEBUCK
Plaintiff
AND
ANTHONY VLADIMIR SMOJE
MIRJANA PALMINA SMOJE
NEVEN TIHOMIR SMOJE
First Defendants
THE RETURNED SERVICES LEAGUE OF AUSTRALIA WA BRANCH INC
Second Defendant

Catchwords:

Will - Proof in solemn form - Issue concerning costs - Exceptions to rule that costs follow the event in probate cases - Unsuccessful party allowed costs out of the estate

Legislation:

Nil

Result:

Pronouncement for Will in solemn form
Defendants' costs to be paid out of the estate

Representation:

Counsel:

Plaintiff:     Mr R A C Cullen
First Defendants           :     Mr J M Malcolm
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Dwyer Durack
First Defendants           :     Jeremy Malcolm
Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

In the Estate of Gertrude Martha Elizabeth Hacke, Public Trustee v Wilson, unreported, NSW Probate Division, NSW SCt; 13 November 1985
Jamal v Secretary of the Department of Health (1988) 14 NSWLR 252
Re Cutcliffe's Estate [1959] P 6
Re Green [1969] WAR 67
Re Herbert (1990) 101 FLR 279
Swain v Noakes, unreported; SCt of WA; Library 920173; 25 February 1992
Twist v Tye [1902] P 92

Case(s) also cited:

Nil

HASLUCK J: This is an application by the plaintiff Donald John Roebuck for various orders to be made after the trial of the action. The orders sought by the plaintiff as moved on his behalf by counsel are as follows:
(1)The court hereby pronounces for the force and validity of the last Will and testament dated 7 March 1996 of Pasko Smoje, the deceased in this action, a copy of which Will is referred to in the affidavit of scripts of the plaintiff Donald John Roebuck filed on 27 March 1998;
(2)Probate of the estate of Pasko Smoje be granted to Donald John Roebuck, the executor named therein;
(3)The first defendants do pay the plaintiff's costs of the action herein to be taxed.
I digress briefly to observe that I have before me in respect of this application counsel for the plaintiff and counsel for the first defendants. Counsel for the second defendant, the Returned Services League, had appeared previously and indicated that his client would simply abide the ruling of the court. I note from the terms of the proposed orders I have just recited that in any event there is no costs order likely to affect the second defendant if orders in those terms were made.
Counsel for the first defendants has indicated that there is no controversy concerning the first two of the proposed orders. Counsel for the defendants does, however, oppose the proposed order that the first defendants do pay the plaintiff's costs of the action herein to be taxed. Thus there is a controversy between the parties concerning the issue of costs and a need to resolve that controversy.
In order…

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 Roebuck v Smoje

Details

AGLC: Roebuck v Smoje [2001] WASC 95
Case: [2001] WASC 95
Decision Date: 30 MARCH 2001

CaseChat Overview and Summary

The case of Roebuck v Smoje involved a dispute over the validity of a will. The deceased, Mr Roebuck, left a will which was contested by the respondents, who were his relatives. The dispute centred on the will's execution and whether it complied with the formalities required for a valid will under the relevant legislation. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the will was properly executed and whether the respondents were entitled to costs. The respondents argued that the will did not comply with the requirements of solemn form and sought to have it declared invalid. They also argued that they were entitled to costs as the unsuccessful party in the proceedings. The executors of the will, the appellants, contended that the will was validly executed and that the respondents were not entitled to costs as the proceedings were not in the nature of an action at law but rather an application in probate.

The court found that the will was validly executed and dismissed the respondents' application to have it declared invalid. However, the court also held that the respondents were entitled to costs as the unsuccessful party. The court reasoned that although costs generally follow the event in probate cases, there are exceptions where the court may exercise its discretion to order costs. In this case, the court found that the respondents' challenge to the will was not frivolous or vexatious and that the proceedings were not in the nature of an action at law. Therefore, the respondents were entitled to costs out of the estate. The court ordered that the respondents be paid costs of the proceedings.

The court's decision highlights the importance of ensuring that wills are properly executed to avoid disputes and potential challenges to their validity. It also emphasises the need for careful consideration of the appropriate costs orders in probate cases, particularly where there are exceptions to the general rule that costs follow the event.

Orders