BROWN AND ORS v AKERMAN [1995] NSWCA 60

BROWN AND ORS v AKERMAN [1995] NSWCA 60

Leave to appeal was refused because the issue of the reasonableness of the enquiry was not raised before the trial judge or before the orders were perfected. Addressing this matter for the first time on appeal is inefficient and contrary to the statutory requirement and established principles for reviewing discretionary costs decisions.

Parties
Claimant: Brown; Opponent: Akerman
Jurisdiction
Australia
Judgment Date
22 May 1995
Procedural Posture
Probate / Application for Leave to Appeal From a Costs Order
Outcome
Summons dismissed with costs.
Legal Topics
Costs Discretion in Probate Challenges, Reasonableness of Investigation for Will Contests
Wills, Probate and Administration Costs Costs Discretion in Probate Challenges Reasonableness of Investigation for Will Contests

Case Brief

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Parties

Brown

Claimant

Akerman

Opponent

Procedural Posture

Probate / Application for Leave to Appeal From a Costs Order

Legal Issues

  1. 1 Whether the primary judge failed to consider the reasonableness of the investigation into the will when making the costs order.
  2. 2 Whether leave to appeal against the costs order should be granted in a probate suit where the challenge to the will was unsuccessful.

Ratio Decidendi

Leave to appeal was refused because the issue of the reasonableness of the enquiry was not raised before the trial judge or before the orders were perfected. Addressing this matter for the first time on appeal is inefficient and contrary to the statutory requirement and established principles for reviewing discretionary costs decisions.

Court Disposition

Summons dismissed with costs.

Orders

  • Summons dismissed with costs.