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Wehbe v Giotopoulos (No 2)

Wehbe v Giotopoulos (No 2)

Case [2023] NSWSC 934 10 August 2023

Costs

Offers of Compromise

Calderbank Offers

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wehbe v Giotopoulos (No 2) [2023] NSWSC 934
Hearing dates: On the papers
Date of orders: 10 August 2023
Decision date: 10 August 2023
Jurisdiction: Equity
Before: Darke J
Decision:
Order made that plaintiffs pay the defendant’s costs, including on an indemnity basis from 8 June 2023.

Catchwords:
COSTS – contested probate – offers of compromise – Calderbank offers – where the defendant successfully challenged will propounded by the plaintiffs – where the defendant had unsuccessfully raised the issue of undue influence – where the plaintiffs rejected a Calderbank offer, and an offer of compromise made under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 20.26 – whether there is any reason to depart from the usual order that costs follow the event – whether a costs order should be made to reflect the defendant’s failure to establish undue influence – held that there is no reason to depart from the usual order – the defendant obtained a judgment no less favourable than the terms of the offer of compromise – held that defendant is entitled to indemnity costs against the plaintiffs pursuant to UCPR r 42.15A(2) and an indemnity out of the deceased estate to the extent that her costs are not recovered from the plaintiffs

Legislation Cited:
Supreme Court Rules 1970 (NSW), Pt 78 r 57
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A

Cases Cited:
Alexakis v Masters (No 3) [2023] NSWSC 694
Bear v Bear; Jordan v Bear [2022] NSWSC 1687
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Calderbank v Calderbank [1976] Fam 93
Estate Cockell; Cole v Paisley [2016] NSWSC 349
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298
Mautray Pty Ltd v Pillemer Pty Ltd [2022] NSWSC 1315
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Nock v Austin (1918) 25 CLR 519
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) (2011) 288 ALR 385; [2011] NSWCA 256
Walker v Harwood [2017] NSWCA 228
Wehbe v Giotopoulos [2023] NSWSC 827

Category: Costs
Parties: George Paul Wehbe (First Plaintiff/First Cross-Defendant– self represented and on behalf of the Second Plaintiff/Second Cross-Defendant)
Simon Charbel Wehbe (Second Plaintiff/Second Cross-Defendant)
Marcha Giotopoulos (Defendant/Cross-Claimant)
Representation:
Counsel:
Mr J E F Brown (Defendant/Cross-Claimant)
Solicitors:
Shad Partners (Defendant/Cross-Claimant)

File Number(s): 2021/167226
Publication restriction: None

Judgment

Introduction

On 14 July 2023, I delivered judgment in this matter, dismissing the plaintiffs’ application for a grant of probate in solemn form of the will signed by the late Wadad Wehbe (“the deceased”) on 8 July 2020: see Wehbe v Giotopoulos [2023] NSWSC 827 (“the principal judgment”). Consequently, I made orders declaring that the deceased died intestate. I also made orders for the making of a grant of administration, in respect of the intestate estate of the…

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 Wehbe v Giotopoulos (No 2)

Details

AGLC: Wehbe v Giotopoulos (No 2) [2023] NSWSC 934
Case: [2023] NSWSC 934
Decision Date: 10 August 2023

CaseChat Overview and Summary

The case of Wehbe v Giotopoulos (No 2) involved a dispute regarding the costs in a contested probate matter. The deceased, Maria Wehbe, left a will that excluded her son, the defendant George Giotopoulos, and bequeathed her estate to her sister and her husband, the plaintiffs. The defendant challenged the validity of the will on the basis of undue influence, which was ultimately unsuccessful. The plaintiffs rejected both a Calderbank letter and an offer of compromise made under the UCPR r 20.26. The central legal issues before the court were whether there was any reason to deviate from the usual order that costs follow the event and whether the defendant should be awarded indemnity costs against the plaintiffs, as well as an indemnity out of the deceased estate for costs not recoverable from the plaintiffs.

The court found that the defendant's judgment was no less favourable than the terms of the offer of compromise. As a result, the usual order that costs follow the event should be upheld. The court also ruled that the defendant was entitled to indemnity costs against the plaintiffs under UCPR r 42.15A(2) due to the unsuccessful challenge of the will. Furthermore, the court determined that the defendant was entitled to an indemnity out of the deceased estate to the extent that his costs were not recoverable from the plaintiffs. The reasoning was that the defendant's unsuccessful challenge did not prevent him from obtaining a favourable judgment, and thus, the plaintiffs' rejection of the offers of compromise justified the costs orders in favour of the defendant.

The court ordered that George Giotopoulos was entitled to indemnity costs against the plaintiffs, as well as an indemnity out of the deceased estate, up to the amount of his costs not recoverable from the plaintiffs. This decision underscores the importance of offers of compromise in litigation, particularly in probate matters, and highlights the consequences for parties who reject such offers without sufficient justification.

Orders