Stone & Anor v Pinniger [2011] NSWSC 1148

Stone & Anor v Pinniger [2011] NSWSC 1148

The defendant/cross-claimant failed to establish either probate costs exception because the solicitor's explanations, correspondence and affidavit made clear that the informal document was an asset list rather than a testamentary document and that trust assets were not estate assets, leaving no rational basis for continued opposition to probate or for the cross-claim. His opposition was maintained to advance his personal interest as a potential beneficiary. After receiving Mr Buckley's affidavit, a reasonable evaluation would have shown that the defence and cross-claim had no evidence and were doomed to fail, justifying indemnity costs from 1 September 2010.

Jurisdiction
Australia
Judgment Date
27 September 2011
Procedural Posture
Probate Costs Application in Contested Proceedings for Grant of Probate in Solemn Form / Costs Determination After Proposed Grant of Probate in Solemn Form and Dismissal of Amended Cross Claim
Outcome
The defendant/cross-claimant was ordered to pay the plaintiffs/cross-defendants' costs on the ordinary basis up to and including 31 August 2010 and on an indemnity basis thereafter, with any unreimbursed plaintiffs' costs to be paid out of the estate on an indemnity basis.
Legal Topics
['costs in Probate Litigation' 're Hodges Exceptions' 'indemnity Costs' 'informal Testamentary Documents' 'grant of Probate in Solemn Form']
['costs' 'probate and Succession'] ['costs in Probate Litigation' 're Hodges Exceptions' 'indemnity Costs' 'informal Testamentary Documents' 'grant of Probate in Solemn Form']

Case Brief

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Procedural Posture

Probate Costs Application in Contested Proceedings for Grant of Probate in Solemn Form / Costs Determination After Proposed Grant of Probate in Solemn Form and Dismissal of Amended Cross Claim

Legal Issues

  1. 1 ["Whether the unsuccessful defendant/cross-claimant should have his costs paid out of the estate or pay the plaintiffs' costs personally." 'Whether the litigation was caused by the testator or whether the circumstances reasonably required investigation so as to justify a special probate costs order.' "Whether the defendant/cross-claimant should pay the plaintiffs' costs on an indemnity basis."]

Ratio Decidendi

The defendant/cross-claimant failed to establish either probate costs exception because the solicitor's explanations, correspondence and affidavit made clear that the informal document was an asset list rather than a testamentary document and that trust assets were not estate assets, leaving no rational basis for continued opposition to probate or for the cross-claim. His opposition was maintained to advance his personal interest as a potential beneficiary. After receiving Mr Buckley's affidavit, a reasonable evaluation would have shown that the defence and cross-claim had no evidence and were doomed to fail, justifying indemnity costs from 1 September 2010.

Court Disposition

The defendant/cross-claimant was ordered to pay the plaintiffs/cross-defendants' costs on the ordinary basis up to and including 31 August 2010 and on an indemnity basis thereafter, with any unreimbursed plaintiffs' costs to be paid out of the estate on an indemnity basis.

Orders

  • ["The defendant/cross-claimant pay the plaintiffs/cross-defendants' costs of the proceedings up to and including 31 August 2010 on the ordinary basis, and thereafter on an indemnity basis." "To the extent the plaintiffs/cross-defendants' costs are not wholly reimbursed by order (1), such costs on an indemnity basis...