The Estate of Bourke - [2024] NSWSC 280

Supreme Court

New South Wales

Medium Neutral Citation: The Estate of Bourke [2024] NSWSC 280
Hearing dates: 2 February 2024, 1 March 2024
Date of orders: 22 March 2024
Decision date: 22 March 2024
Jurisdiction: Equity - Probate List
Before: Slattery J
Decision:
There will be no order for the costs of the plaintiff’s notice of motion filed on 23 January 2024 and the plaintiff will not be entitled to be indemnified out of the estate for his costs of the motion.

Catchwords:
COSTS – party/party – exercise of costs discretion – contested probate suit – plaintiff is the executor of an estate – final orders made by consent in September 2023 – plaintiff’s notice of motion of January 2024 sought to vary the final orders – plaintiff’s January 2024 motion is resolved by agreement except as to the costs of the motion – the Court foreshadows the making of orders that the contest about the costs of the motion be capped at a maximum of $5,000 – which party should bear the costs of motion – application of Lai Qin principles – whether one party was almost certain to have succeeded, if the matter had been fully tried – whether one party has conducted itself unreasonably – whether the plaintiff should be entitled to indemnify himself out of the estate for his costs of the contest and any liability for costs he bears.

Legislation Cited:
Uniform Civil Procedure Rules 2005, rr 31.46, 36.15, 36.16, 36.17
Civil Procedure Act 2005, s 98(4)(c)

Cases Cited:
Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194
Dixon v Dixon (No. 2) [2022] NSWSC 944
Re Minister for Immigration and Ethnic Affairs v Lai Qin (1997) 186 CLR 622

Category: Consequential orders
Parties: Plaintiff: Paul Martin Bourke
Defendant: Stephanie Frances Bourke
Representation:
Counsel:
Plaintiff: I Hoskinson
Defendant: C. Birtles
Solicitors:
Plaintiff: Igor Kazagrandi, BMA House Lawyers
Defendant: Caroline Zoe Sims, Teece Hodgson & Ward Lawyers

File Number(s): 2023/96919
Publication restriction: No

JUDGMENT

The plaintiff, Paul Bourke, and the defendant, Stephanie Bourke, are brother and sister. They are the children of the late Dr Helen Jessie Bourke, a scholar and art collector, who died leaving an estate of approximately $2 million. Despite their mother’s testamentary largesse, they have asked the Court to resolve the disputed costs of a Notice of Motion filed in January 2024. The Court was told these were about $15,000. Following the precepts of Civil Procedure Act 2005, s 60 to keep the costs of the parties in arguing about the costs of the Motion proportionate to the subject matter in dispute the Court noted that it might limit the successful party’s cost recovery on the Motion to no more than $5,000.
Ms I. Hoskinson of counsel, instructed by Mr Igor Kazagrandi, of BMA House Lawyers, appeared for the plaintiff/applicant on the Motion. Mr C. Birtles of counsel, instructed by Caroline Zoe Sims of Teece Hodgson & Ward Lawyers, appeared for the defendant.
This judgment resolves an…

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.

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Details

Case: [2024] NSWSC 280
Decision Date: 22 March 2024

CaseChat Overview and Summary

The Estate of Bourke was a contested probate matter in which the plaintiff, as the executor of the estate, sought to vary final orders made by consent in September 2023. A notice of motion filed by the plaintiff in January 2024 sought to vary those final orders, and while most aspects of the motion were resolved by agreement, a dispute arose concerning the costs associated with the motion. The court was tasked with determining the appropriate allocation of costs between the parties.

The legal issues before the court centred on the exercise of its discretion regarding the costs of the motion. The court had to consider whether one party was almost certain to have succeeded if the matter had been fully tried, whether any party had conducted themselves unreasonably, and whether the plaintiff should be entitled to indemnify himself out of the estate for his costs and any liability for costs he bears. The court also needed to apply the principles set out in Lai Qin to guide its decision.

The court found that while the motion was largely resolved by agreement, the dispute over costs required careful consideration. It foreshadowed making orders that the contest about the costs of the motion be capped at a maximum of $5,000. The court applied the principles from Lai Qin and determined that neither party was almost certain to have succeeded if the matter had been fully tried. The court further found that the plaintiff had not conducted themselves unreasonably. Consequently, the court decided that the plaintiff should indemnify himself out of the estate for his costs of the contest and any liability for costs he bears.

The final orders of the court directed that the costs of the motion be capped at a maximum of $5,000 and that the plaintiff indemnify himself out of the estate for his costs of the contest and any liability for costs he bears.

Orders