Dickman v Holley; Estate of Simpson (No. 2) [2013] NSWSC 198

Dickman v Holley; Estate of Simpson (No. 2) [2013] NSWSC 198

There is jurisdiction to order interest from the commencement of proceedings under s 100, and it is proper to do so to compensate the plaintiff. Costs of probate proceedings are to be borne by each party due to the circumstances of the will calling for judicial enquiry; the defendant is not entitled to retain costs from funds to be remitted to the plaintiff. Costs of equity proceedings are to be paid by the plaintiff only to the extent they exceed costs necessary for the probate proceedings.

Jurisdiction
Australia
Judgment Date
22 February 2013
Procedural Posture
Probate and Equity / Decision on Interest and Costs
Outcome
Orders made as set out in paragraphs [23] and [24] of the judgment
Legal Topics
['interest on Judgment' 'costs in Probate Proceedings' 'offer of Compromise' 'revocation of Probate']
['probate' 'civil Procedure' 'equity'] ['interest on Judgment' 'costs in Probate Proceedings' 'offer of Compromise' 'revocation of Probate']

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Procedural Posture

Probate and Equity / Decision on Interest and Costs

Legal Issues

  1. 1 ['Whether interest should be ordered under s 100 of the Civil Procedure Act 2005 on the sum to be paid to the plaintiff' "How costs should be dealt with in probate and equity proceedings where will's circumstances call for judicial inquiry" 'Effect of offers of compromise in multiple proceedings']

Ratio Decidendi

There is jurisdiction to order interest from the commencement of proceedings under s 100, and it is proper to do so to compensate the plaintiff. Costs of probate proceedings are to be borne by each party due to the circumstances of the will calling for judicial enquiry; the defendant is not entitled to retain costs from funds to be remitted to the plaintiff. Costs of equity proceedings are to be paid by the plaintiff only to the extent they exceed costs necessary for the probate proceedings.

Court Disposition

Orders made as set out in paragraphs [23] and [24] of the judgment

Orders

  • ['Grant of probate made on 5 October 2006 in respect of Vera May Simpson revoked' 'Second defendant to deliver up the grant of probate to Registrar' 'Registrar may dispense with order 2 if original cannot be found' 'Plaintiff to be granted probate in common form of will dated 23 September 1998' 'Proceedings referred...