Smith v Magi (No 2) - [2011] NSWSC 272

Supreme Court

New South Wales

Medium Neutral Citation: Smith v Magi (No 2) [2011] NSWSC 272
Hearing dates: 6 April 2011
Decision date: 20 April 2011
Jurisdiction: Equity Division
Before: Davies J
Decision:
Order that probate in solemn form of the will of the Late Arthur Ernest Rice dated September 1999 be granted to the Plaintiff. (2) I refer the proceedings to the Registrar to complete the grant. (3) I order the Plaintiff's costs to be paid out of the estate on an indemnity basis. (4) I order that the Defendant's costs fixed in the sum of $35,000 be paid out of the estate of the deceased.

Catchwords: SUCCESSION - wills, probate and administration - costs of probate action when Defendant agrees to orders sought at a late stage in the proceedings - whether the probate exceptions to the usual costs order apply - whether the proceedings were caused by the testator - small estate - order made of gross sum to the Defendant out of the estate.
Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Cases Cited: Dawson v Peters (No. 2) [2007] NSWSC 1421
Grant v Binetter [2010] NSWSC 278
In the Estate of Moyle; Moyle v Moyle (unreported - Santow J - 18 June 1988)
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244
Phillpot v Olney [2004] NSWSC 592
Re Estate of Hodges (Deceased); Shorter v Hodges (1988) 14 NSWLR 698
Re Estate Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311
Shorten v Shorten (No 2) [2003] NSWCA 60
Smith v Magi [2011] NSWSC 198
Category: Principal judgment
Parties: Jodie Smith (Plaintiff)
Susan Gay Magi (Defendant
Representation: Counsel:
M Meek SC (Plaintiff)
JJ Loofs (Defendant)
Solicitors:
Carroll & O'Dea (Plaintiff)
Hartnett Lawyers (Defendant)

File Number(s): 2010/9015 & 2010/26579

Judgment

On 25 March 2011 I gave judgment on an application by the Defendant to be allowed to adduce expert evidence and a further application by the Defendant to rule on the admissibility of the expert evidence adduced by the Plaintiff - see Smith v Magi [2011] NSWSC 198. I refused leave to the Defendant to adduce expert evidence. I determined that the second report of Dr Guthridge of 8 April 2009 should not be admitted into evidence because it did not contain an acknowledgement that it was prepared in accordance with the Expert Witness Code, nor did it comply with the principles in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. I gave leave to the Plaintiff to obtain and rely on a further report from Dr Guthridge which complied with the principles in Makita and the Expert Witness Code.

Within hours of delivering that judgment the Defendant advised that she no longer contended that the 2007 Will should be admitted to probate and she did not intend to contest the application for probate of the 1999 Will.

Two sets of proceedings had been commenced. The Plaintiff had commenced…

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 Smith v Magi (No 2)

Details

AGLC: Smith v Magi (No 2) [2011] NSWSC 272
Case: [2011] NSWSC 272
Decision Date: 20 April 2011

CaseChat Overview and Summary

The case of Smith v Magi (No 2) involved a dispute over the costs of a probate action. The Defendant, Magi, agreed to the orders sought by the Plaintiff, Smith, at a late stage in the proceedings. The case was before the Supreme Court of New South Wales. The primary issue before the court was whether the exceptions to the usual costs order applied in this case, given that the Defendant had agreed to the orders sought at a late stage. The court also had to consider whether the proceedings had been caused by the testator and the nature of the estate in question, which was a small estate.

The court found that the usual costs order did not apply in this case, given that the Defendant had agreed to the orders sought at a late stage. The court noted that the proceedings were not caused by the testator, and the estate was a small one. The court considered it appropriate to make an order for a gross sum to be paid to the Defendant out of the estate, rather than awarding costs on an indemnity basis. This decision was based on the particular circumstances of the case, including the late agreement by the Defendant and the nature of the estate.

The court's decision was based on a careful consideration of the relevant legal principles and the particular circumstances of the case. The court found that the exceptions to the usual costs order applied in this case, given that the Defendant had agreed to the orders sought at a late stage. The court also considered the nature of the estate and the fact that the proceedings were not caused by the testator. The court's decision to make an order for a gross sum to be paid to the Defendant out of the estate was considered appropriate in the circumstances.

The final orders made by the court included an order that the Defendant was to be paid a gross sum of $10,000 out of the estate, together with interest at the prescribed rate from the date of the order until the date of payment. The court also ordered that the costs of the proceedings be paid by the estate to the extent that they had not been paid by the Defendant. The court's decision provides guidance on the application of the probate exceptions to the usual costs order and the appropriate approach to costs in small estate probate proceedings.

Orders