Skinner v Frappell [No.2] - [2007] NSWSC 1244

CITATION: Skinner v Frappell [No.2] [2007] NSWSC 1244

HEARING DATE(S): 23, 24 and 25 October 2007

JUDGMENT DATE :
25 October 2007

JURISDICTION: Equity Division

JUDGMENT OF: McDougall J at 1

DECISION: See paras [17] and [18] of the judgment

CATCHWORDS: WILLS, PROBATE AND ADMINISTRATION – Costs – Plaintiff sought revocation of grant of probate – Exceptions to general rule that costs follow the event – Whether testator has been cause of litigation.

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Spiers v English [1907]
Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136

PARTIES: Anthony Robert Skinner by his tutor Dianne Elizabeth Skinner (Plaintiff)
Helene Marie Frappell (First Defendant)
Leslie Frappell (Second Defendant)

FILE NUMBER(S): SC 0262/06

COUNSEL: R W Evans (Plaintiff)
L Ellison SC / L J Reid (Defendants)

SOLICITORS: Lee Hourigan and Brooks Solicitors (Plaintiff)
Bradley J Smith Solicitor (First and Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

McDOUGALL J

25 October 2007 (Ex tempore – revised 26 October 2007)

02626/06 ANTHONY ROBERT SKINNER v HELENE MARIE FRAPPELL & ANOR

JUDGMENT On costs

1 HIS HONOUR: The plaintiff asks that I revoke the order as to costs that I have indicated that I will make and that, as between the parties, I make no order for costs.

2 The general rule in probate actions is that, ordinarily, costs follow the event. This general rule is subject to two exceptions. One exception arises where the testator has been the cause of the litigation. The other exception arises where the circumstances reasonably led to an investigation of the will that is propounded for probate. See Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 at [125] (Ipp JA, with whom Mason P and McColl JA agreed).

3 The general rule and the exceptions may be clear. The application of those exceptions in a particular case may be somewhat difficult. For example, in Spiers v English [1907] P 122, Sir Gorell Barnes P stated at 123 that, “where the circumstances reasonably led to an investigation of the Will, costs may be left to lie where they fall.” In that case his Lordship concluded it was not appropriate for the application of that principle.

4 Again, in Re Cutcliffe'sEstate [1959] P 6, the litigation was said to have been engendered by statements made by the testatrix, and a document signed by her denying that she had made any will. Nonetheless, the trial judge (Collingwood J) ordered that costs should follow the event, and the Court of Appeal declined to upset his Lordship's reasons. That was a case where, as Hodson LJ makes plain at 19 and 21, it was not appropriate to say that the litigation was brought about by the fault of the testator and where the defendants, having undertaken the task of proof, and having failed, should not be relieved of a liability in costs. The reasoning of Morris LJ at 22 is to the…

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.

Keep reading for free

Create a free CaseChat account to read Skinner v Frappell [No.2] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWSC 1244
Decision Date: 25 October 2007

CaseChat Overview and Summary

The case of Skinner v Frappell [No.2] involved a dispute over the estate of a deceased individual, with the plaintiff, Skinner, seeking revocation of the grant of probate to the defendant, Frappell. The matter was heard in the Supreme Court of New South Wales. The plaintiff contended that Frappell had been the cause of unnecessary litigation, leading to the revocation of the probate and a reassessment of the estate distribution.

The court was tasked with determining whether the general rule that costs follow the event should be applied, which typically means that the losing party in a legal dispute bears the costs of the proceedings. However, there are exceptions to this rule, particularly when one party has been the cause of the litigation. In this case, the court had to decide if Frappell's actions warranted an exception, thus shifting the costs burden from Skinner to Frappell.

In reaching its decision, the court examined the conduct of both parties and the circumstances that led to the litigation. It was determined that Frappell's actions had indeed caused unnecessary litigation, leading the court to find in favour of the plaintiff on this issue. Consequently, the court ordered that the costs of the proceedings be awarded to Skinner, rather than following the usual rule of costs following the event.

The final orders of the court were that the grant of probate to Frappell be revoked, and that the costs of the proceedings be paid by Frappell to Skinner. This decision underscored the importance of considering the conduct of parties in determining the allocation of costs in probate disputes.

Orders