Galea v Camilleri [2019] NSWSC 167

Galea v Camilleri [2019] NSWSC 167

The plaintiffs did not establish a sound positive ground or reason for departing from the ordinary rule that they should pay the defendant's costs under UCPR 42.19(2). It was not reasonable for them to commence proceedings without first articulating their concerns to the defendant by a proper letter of demand, and there was no objective evidence the executor was administering the estate in a delinquent manner. Therefore, costs follow the event and are to be paid by the plaintiffs.

Parties
First Plaintiff: Carol Galea; Second Plaintiff: Reno Camilleri; Defendant: John Camilleri
Jurisdiction
Australia
Judgment Date
01 March 2019
Procedural Posture
Equity / Principal Judgment; Post Notice of Motion Seeking Discontinuance/dismissal and Costs
Outcome
Plaintiffs' proceedings dismissed; costs awarded to defendant
Legal Topics
Costs, Dismissal of Proceedings, Removal of Executor
Succession Law Civil Procedure Costs Dismissal of Proceedings Removal of Executor

Case Brief

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Parties

Carol Galea

First Plaintiff

Reno Camilleri

Second Plaintiff

John Camilleri

Defendant

Procedural Posture

Equity / Principal Judgment; Post Notice of Motion Seeking Discontinuance/dismissal and Costs

Legal Issues

  1. 1 Whether the plaintiffs should pay the defendant's costs following discontinuance/dismissal of proceedings to remove executor and revoke probate
  2. 2 Whether it was reasonable for the plaintiffs to commence proceedings when they did, particularly absent a letter of demand

Ratio Decidendi

The plaintiffs did not establish a sound positive ground or reason for departing from the ordinary rule that they should pay the defendant's costs under UCPR 42.19(2). It was not reasonable for them to commence proceedings without first articulating their concerns to the defendant by a proper letter of demand, and there was no objective evidence the executor was administering the estate in a delinquent manner. Therefore, costs follow the event and are to be paid by the plaintiffs.

Court Disposition

Plaintiffs' proceedings dismissed; costs awarded to defendant

Orders

  • The plaintiffs' proceedings are dismissed.
  • The plaintiffs are ordered to pay the defendant's costs of the proceedings.