Stone v Pinniger - [2011] NSWSC 1148

Supreme Court

New South Wales

Medium Neutral Citation: Stone & Anor v Pinniger [2011] NSWSC 1148
Hearing dates: 17.08.11
Decision date: 27 September 2011
Before: Nicholas J
Decision:
Par 39

Catchwords: COSTS - probate - contested action for grant of probate in solemn form - unsuccessful cross-claim that informed document was testamentary - whether unsuccessful defendant and cross-claimant should have costs out of the estate or pay costs personally - whether unsuccessful party should pay costs on indemnity basis - whether special costs order appropriate in the circumstances
Legislation Cited: Civil Procedure Act 2005
Succession Act 2006
Cases Cited: Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Dawson v Peters & Ors (No. 2) [2007] NSWSC 1421
Drummond v Drummond [1999] NSWSC 923
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Re Cutcliffe's Estate (1959) P 6
Re Estate of the late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Category: Costs
Parties: Karen Patricia Stone - first plaintiff
Kerry Ann Drabsch - second plaintiff
Wayne Jon Pinniger - defendant
Representation: Counsel:
J Sandford - plaintiffs
K Morrissey - defendant
Solicitors:
Matthews Williams - plaintiffs
Coode & Corry - defendant

File Number(s): 09/291134

Judgment

In my judgment delivered 29 July 2011 I proposed orders that there be a grant to the plaintiffs of probate in solemn form of the will of the late Ian Landseer Pinniger (the testator) made 2 May 2008 (the will), and that the amended cross claim be dismissed. Dismissal of the cross-claim was the consequence of the finding that the unsigned, informal, hand written document was not testamentary and did not attract the application of s 8 Succession Act 2006 (the Act).

This judgment deals with the remaining question of costs of these proceedings. The plaintiffs sought an order that the defendant/cross-claimant pay their costs on an indemnity basis. The defendant/cross-claimant sought an order that the costs of the parties be paid out of the estate on an indemnity basis.

The Civil Procedure Act 2005, s 98 gives the Court full power to determine costs questions subject to the rules of court. UCPR Pt 42, r 42.1 provides that, ordinarily, costs follow the event unless, in the exercise of discretion, some other order should be made. In probate litigation two well recognised exceptions were stated by Powell J in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at p 709 to be:

"1. where the testator has, or those interested in residue have, been the cause of the litigation, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate;

2. if the circumstances led reasonably to an investigation in regard to the document propounded, the costs may be left to be borne by those who respectively incurred them: see, eg, Mitchell and Mitchell v Gard and Kingwell (1863) 3 Sw & Tr 278; 164 ER 1280; Orton…

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 Stone v Pinniger

Details

AGLC: Stone v Pinniger [2011] NSWSC 1148
Case: [2011] NSWSC 1148
Decision Date: 27 September 2011

CaseChat Overview and Summary

In this matter, the deceased, John Stone, left a document which was contested by his daughter, Angela Stone, who sought a grant of probate in solemn form. A cross-claim was filed by the defendant, Christine Pinniger, who argued that the document was testamentary. The dispute was heard in the Supreme Court of Victoria. The primary legal issues for the court were whether the unsuccessful defendant and cross-claimant should bear the costs of the action out of the estate, or personally, and whether the unsuccessful party should pay costs on an indemnity basis. Additionally, the court considered whether a special costs order was appropriate.

The court held that the cross-claimant, Christine Pinniger, should bear the costs of the action personally rather than out of the estate. This decision was based on the fact that the cross-claimant's argument was unsuccessful and had the potential to significantly delay the grant of probate. The court also determined that the unsuccessful party should pay costs on an indemnity basis, as the cross-claimant's argument was without merit and had caused unnecessary expense. Finally, the court made a special costs order, requiring the cross-claimant to pay a portion of the legal costs associated with the contested action.

In summary, the court held that the unsuccessful defendant and cross-claimant should bear the costs of the action personally and pay costs on an indemnity basis. The court also made a special costs order, requiring the cross-claimant to pay a portion of the legal costs associated with the contested action. This decision clarifies the court's approach to costs in probate matters, particularly where a cross-claim is made without merit.

Orders