Teasel v Hooke (No 2) - [2015] NSWSC 88

Supreme Court

New South Wales

Medium Neutral Citation: Estate Moran; Teasel v Hooke (No 2) [2015] NSWSC 88
Hearing dates: 16 February 2015
Date of orders: 16 February 2015
Decision date: 16 February 2015
Jurisdiction: Equity Division - Probate List
Before: Lindsay J
Decision:
Confirmation of order for defendant to pay costs of unsuccessfully opposed application for admission of an informal will to probate

Catchwords: SUCCESSION – Wills, Probate and Administration – Probate and letters of administration – Contested application for admission of informal will to probate - Costs – General principles – Costs ordinarily follow event, subject to established exceptions in probate cases – Costs remain in discretion of court – Where plaintiff and defendant, as only interested parties, engage in ordinary adversarial litigation, appropriate order may be for costs to follow event rather than be paid out of deceased estate.
Legislation Cited: Civil Procedure Act 2005 NSW, s 98
Succession Act 2006 NSW, s 8
Uniform Civil Procedure Rules 2005 NSW, r 42.1
Cases Cited: Bannister v Perpetual Trustee Co Limited; Estate of Mascot Zita Blake deceased [2008] NSWSC 1283 at [29]-[30]
Bell v Crewes [2011] NSWSC 1159 at [61] - [70].
Re Eger; Heilprin v Eger (4 February 1985, Powell J, unrep)
Texts Cited: Mason and Handler, Succession Law and Practice (NSW), para [13,001]
Category: Procedural and other rulings
Parties: Plaintiff/Cross Defendant: Jessica Leigh Teasel
Defendant/Cross Claimant: Alistair-John Mark Hooke
Representation:
Counsel:
Plaintiff/Cross Defendant: J McIntosh
Defendant/Cross Claimant: L Ellison
Solicitors:
Plaintiff/Cross Defendant: JNT Legal
Defendant/Cross Claimant: Turnbull Hill Lawyers

File Number(s): 2014/00148998

Judgment – ex tempore

Before the Court is a notice of motion filed by the defendant (on 2 February 2015), pursuant to a reservation of liberty to apply, for variation of costs orders provisionally made on 19 December 2014, upon publication of reasons for judgment ([2014] NSWSC 1839) that culminated in an informal Will being admitted to probate.
At the time of publishing the principal judgment I expressed a preliminary view that: (a) costs of the application (under the Succession Act 2006 NSW, s 8), for admission of the informal will to probate, should follow the event; and (b) to the extent that the plaintiff does not recover her costs of that application from the defendant, she should be entitled to recover them from the estate: [81].
The defendant contends that his costs ought to be allowed out of the estate or, alternately, that there should be no order as to his costs. Implicit in his contentions is a broader contention that the costs of both parties should be paid out of the estate.
There is no dispute that costs are in the discretion of the Court. Section 98 of the Civil Procedure Act 2005 NSW so provides.
Nor is there any dispute that, prima facie, costs follow the event. The Uniform Civil Procedure Rules 2005 NSW, rule 42.1 so provides.
In probate proceedings two exceptions to this general rule (that costs follow the event) have come to be recognised, as…

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 Teasel v Hooke (No 2)

Details

AGLC: Teasel v Hooke (No 2) [2015] NSWSC 88
Case: [2015] NSWSC 88
Decision Date: 16 February 2015

CaseChat Overview and Summary

The case of Teasel v Hooke (No 2) involved a contested application for the admission of an informal will to probate, with the parties in dispute being the plaintiff and the defendant, who were the only interested parties. The case was heard in the Supreme Court of New South Wales. The central issue for the court was to determine the appropriate costs order in probate cases, particularly when the only interested parties engage in adversarial litigation. The court had to consider the established exceptions and general principles regarding costs in probate cases, including the discretion of the court and the principle that costs ordinarily follow the event.

The court reviewed the applicable principles and exceptions for awarding costs in probate cases. It considered the discretion of the court and the principle that costs generally follow the event, subject to exceptions. The court acknowledged that where the only interested parties in a probate case engage in adversarial litigation, it may be appropriate to order costs to follow the event rather than be paid out of the deceased's estate. The court weighed these principles against the specific circumstances of the case, including the nature and extent of the litigation and the conduct of the parties.

In reaching its decision, the court concluded that in this case, it was appropriate to order costs to follow the event rather than be paid out of the deceased's estate. The court found that the adversarial nature of the litigation and the conduct of both parties warranted this approach. The court's reasoning was based on the established principles and discretion in awarding costs in probate cases, as well as the specific circumstances of the case. The court determined that the costs should follow the event, reflecting the adversarial nature of the litigation and the conduct of the parties.

The final orders of the court were that the costs of the application were to follow the event. This decision reflected the court's discretion in awarding costs and its consideration of the established principles and specific circumstances of the case. The court's order ensured that the costs of the adversarial litigation were appropriately allocated, rather than being paid out of the deceased's estate.

Orders