Knox v Peacock (No 2) [2024] NSWSC 1372

Knox v Peacock (No 2) [2024] NSWSC 1372

The offers made by the plaintiff did not satisfy the requirements for indemnity costs, but the general rule that costs follow the event applies as the defendant's conduct in prosecuting the case to finality was not reasonable in the circumstances. The testator’s mental state raised genuine issues, but the manner in which the defendant pursued the litigation and failed to adduce evidence regarding the earlier will rendered her conduct unreasonable. Costs are therefore ordered against the defendant, with any shortfall to be covered from the estate.

Parties
Plaintiff/first Cross Defendant: Geoffrey Knox; Defendant/cross Claimant: Isabella Agnes Peacock; Second Cross Defendant: Sydney Opera House Trust
Jurisdiction
Australia
Judgment Date
30 October 2024
Procedural Posture
Probate (costs Application) / Costs Determination After Trial
Outcome
Costs ordered in favour of plaintiff; any shortfall to be paid from estate.
Legal Topics
Costs, Probate, Testamentary Capacity
Equity Costs Probate Testamentary Capacity

Case Brief

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Parties

Geoffrey Knox

Plaintiff/first Cross Defendant

Isabella Agnes Peacock

Defendant/cross Claimant

Sydney Opera House Trust

Second Cross Defendant

Procedural Posture

Probate (costs Application) / Costs Determination After Trial

Legal Issues

  1. 1 Whether the unsuccessful party's costs should be paid out of the estate or by the party personally
  2. 2 Whether the offers made engaged the indemnity costs principles under Calderbank v Calderbank and/or UCPR r 20.26
  3. 3 Application of the general rule that costs follow the event in probate matters, and exceptions to that rule

Ratio Decidendi

The offers made by the plaintiff did not satisfy the requirements for indemnity costs, but the general rule that costs follow the event applies as the defendant's conduct in prosecuting the case to finality was not reasonable in the circumstances. The testator’s mental state raised genuine issues, but the manner in which the defendant pursued the litigation and failed to adduce evidence regarding the earlier will rendered her conduct unreasonable. Costs are therefore ordered against the defendant, with any shortfall to be covered from the estate.

Court Disposition

Costs ordered in favour of plaintiff; any shortfall to be paid from estate.

Orders

  • The defendant/cross-claimant is to pay the plaintiff/cross-defendant's costs of the proceedings on the ordinary basis.
  • Any shortfall between the costs of the plaintiff and the costs recovered from the defendant/cross-claimant pursuant to order (1) be paid from the estate of the late Eva Marie Easton on the indemnity basis.