Walker v Harwood [2017] NSWCA 228

Walker v Harwood [2017] NSWCA 228

It was not unreasonable for the applicants to reject the Calderbank offer; thus, the indemnity costs order from 1 August 2014 could not be sustained. However, the Offer of Compromise of 9 May 2016 engaged UCPR r 42.14, entitling the respondent to indemnity costs from 10am on 23 May 2016, as applicants failed to establish circumstances justifying departure from the rule. Up to that point, costs should be paid from the estate on the indemnity basis, reflecting reasonable conduct by the applicants as executors acting in the interests of proper probate determination.

Jurisdiction
Australia
Judgment Date
07 September 2017
Procedural Posture
Appeal / Leave to Appeal and Substantive Appeal Against Costs Orders Following Probate Proceedings
Outcome
Appeal allowed in part; leave to appeal granted
Legal Topics
['probate Costs' 'calderbank Offers' 'offers of Compromise' 'testamentary Capacity' 'costs Discretion in Probate' 'estate Litigation']
['succession Law' 'civil Procedure'] ['probate Costs' 'calderbank Offers' 'offers of Compromise' 'testamentary Capacity' 'costs Discretion in Probate' 'estate Litigation']

Case Brief

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Procedural Posture

Appeal / Leave to Appeal and Substantive Appeal Against Costs Orders Following Probate Proceedings

Legal Issues

  1. 1 ["Whether the applicants' rejection of the respondent's Calderbank offer was unreasonable and thus justified an indemnity costs order against them" 'Whether the court should depart from the general presumption under UCPR r 42.14 as to costs following an Offer of Compromise' 'Application of established exceptions to the general rule that costs follow the event in probate litigation']

Ratio Decidendi

It was not unreasonable for the applicants to reject the Calderbank offer; thus, the indemnity costs order from 1 August 2014 could not be sustained. However, the Offer of Compromise of 9 May 2016 engaged UCPR r 42.14, entitling the respondent to indemnity costs from 10am on 23 May 2016, as applicants failed to establish circumstances justifying departure from the rule. Up to that point, costs should be paid from the estate on the indemnity basis, reflecting reasonable conduct by the applicants as executors acting in the interests of proper probate determination.

Court Disposition

Appeal allowed in part; leave to appeal granted

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Orders 3 and 4 of the court below set aside.' 'Order that costs incurred up to and including 10am on 23 May 2016 be paid out of the estate of the deceased on an indemnity basis.' "Order that the defendants pay the plaintiff's costs from 10am on 23 May 2016 on an...