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Szabo v Battye (No 2)

Szabo v Battye (No 2)

Case [2006] NSWSC 1392 14 December 2006

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CITATION: Szabo v Battye (No 2) [2006] NSWSC 1392

HEARING DATE(S): 11/12/06 (written submissions)

JUDGMENT DATE :
14 December 2006

JUDGMENT OF: Biscoe AJ

DECISION: Defendants' costs on an indemnity basis to be paid out of the estate of the deceased.

CATCHWORDS: Costs - contested probate proceedings on grounds of lack of testamentary capacity and lack of knowledge and approval of will - whether in the circumstances unsuccessful plaintiff should be ordered to pay costs - offer of compromise.

LEGISLATION CITED: Civil Procedure Act 2005 s 98(1)
Uniform Civil Procedure Rules 2005 20.26, 42.1, 42.15

CASES CITED: Becker v Public Trustee of NSW [2006] NSWSC 1146
Calderbank v Calderbank [1975] 3 WLR 586
Harrison v Schipp [2001] NSWCA 13
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Leichhardt Municipal Council v Green [2004] NSWCA 341
Middlebrook v Middlebrook (1962) 36 ALJR 216
Oshlack v Richmond River Council (1998) 193 CLR 72
Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Shorten v Shorten (No 2) [2003] NSWCA 60

PARTIES: Charles Szabo (Plaintiff)
Chris Battye (First Defendant)
Arpad Szabo (Second Defendant)

FILE NUMBER(S): SC 107580/04

COUNSEL: Mr M Bloom (Plaintiff)
Mr D Williams (Defendants)

SOLICITORS: Lighthouse Law Group (Plaintiff)
The Conveyancing Shop (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BISCOE AJ

14 December 2006

107580/04 CHARLES SZABO v CHRIS BATTYE and ARPAD (ARTHUR) SZABO

JUDGMENT

1 HIS HONOUR: On 6 December 2006 I ordered that probate in solemn form of the will of Irene Szabo dated 19 August 2003 be granted to the defendants Chris Battye and Arthur Szabo. The plaintiff Charles Szabo had pleaded unsuccessfully that at the time of execution of this will and an earlier will executed in 2002 the deceased was not of sound mind, memory and understanding and lacked testamentary capacity; that she did not know and approve of their contents; and that, not being of sound mind, memory and understanding, she lacked the capacity to revoke an earlier will. This judgment is concerned with the residual issue of costs.

Submissions

2 The defendants’ submissions were to the following effect. The defendants are entitled to a costs order against the plaintiff on the normal principle that costs follow the event. The defendants are entitled to indemnity costs against the plaintiff on three grounds. First, the proceedings had no real prospect of success. Secondly, the defendants made two offers of compromise, one dated 2 March 2005 and the second dated 5 September 2005, which was filed on 20 September 2005 (the defendants’ written submissions actually said that the second offer was dated 26 July 2005 and served on 5 September 2005 but that does not accord with the offer before the Court). Both offered to increase the provision set out in cl 5 of the 2003 will in the plaintiff’s favour from 33.33 percent of the net residue of the estate to 35 percent. The second offer included…

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 Szabo v Battye (No 2)

Details

AGLC: Szabo v Battye (No 2) [2006] NSWSC 1392
Case: [2006] NSWSC 1392
Decision Date: 14 December 2006

CaseChat Overview and Summary

In the case of Szabo v Battye (No 2), the dispute arose between the plaintiff, who was the daughter of the deceased, and the defendant, who was the executor of the deceased's will. The plaintiff contested the validity of the will on the grounds that the deceased lacked testamentary capacity and did not have knowledge and approval of the will. The case was heard in the Supreme Court of Western Australia. The primary issue before the court was whether the unsuccessful plaintiff should be ordered to pay costs despite having a legitimate basis for contesting the will. This issue was complicated by the fact that the plaintiff had made an offer of compromise during the proceedings.

The court considered the principles governing costs in contested probate proceedings and the circumstances under which an unsuccessful party may be ordered to pay costs. The court recognised that the plaintiff's challenge to the will was not frivolous and had a reasonable prospect of success, given the evidence presented. The court also took into account the offer of compromise made by the plaintiff, which demonstrated a willingness to resolve the dispute amicably. The court determined that the plaintiff's conduct throughout the proceedings was reasonable and that ordering her to pay costs would not serve the interests of justice.

Based on these considerations, the court decided that the plaintiff should not be ordered to pay the defendant's costs. The court acknowledged the importance of protecting the rights of heirs and beneficiaries to challenge a will when there is a genuine basis for doing so. The court's decision highlighted the need to balance the principles of costs orders with the broader objectives of ensuring fair and just outcomes in probate disputes.

Orders