Cirillo v Cirillo; Estate CA Cirillo, deceased [2013] NSWSC 1797

Cirillo v Cirillo; Estate CA Cirillo, deceased [2013] NSWSC 1797

The defendant did not have a proper basis for lodging the caveat, and his actions resulted in delay of the administration of the estate; therefore, he should pay the costs of the plaintiff's motion personally, on an indemnity basis, and should not be indemnified from the assets of the estate.

Parties
Plaintiff: Pasquale (known as Peter) Cirillo; Defendant: Domenico (known as Mick) Cirillo; Beneficiary: Antonio (known as Anthony) Cirillo
Jurisdiction
Australia
Judgment Date
05 December 2013
Procedural Posture
Probate—motion Regarding Caveat / Costs Determination Following Withdrawal of Caveat
Outcome
The defendant is ordered to pay the plaintiff's costs of the notice of motion filed 25 June 2013 on an indemnity basis, with no right of indemnity against the assets of the estate.
Legal Topics
Probate, Caveat Against Grant, Costs—indemnity Basis
Wills and Estates Probate Caveat Against Grant Costs—indemnity Basis

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Party arguments 2
Sign in to unlock

Parties

Pasquale (known as Peter) Cirillo

Plaintiff

Domenico (known as Mick) Cirillo

Defendant

Antonio (known as Anthony) Cirillo

Beneficiary

Procedural Posture

Probate—motion Regarding Caveat / Costs Determination Following Withdrawal of Caveat

Legal Issues

  1. 1 Whether the defendant should personally pay the plaintiff's costs of the motion on an indemnity basis, with no right of indemnity from the estate
  2. 2 The appropriateness of allowing either party to recover costs from the estate

Ratio Decidendi

The defendant did not have a proper basis for lodging the caveat, and his actions resulted in delay of the administration of the estate; therefore, he should pay the costs of the plaintiff's motion personally, on an indemnity basis, and should not be indemnified from the assets of the estate.

Court Disposition

The defendant is ordered to pay the plaintiff's costs of the notice of motion filed 25 June 2013 on an indemnity basis, with no right of indemnity against the assets of the estate.

Orders

  • The defendant pay the costs of the notice of motion filed by the plaintiff on 25 June 2013.
  • Those costs be assessed on the indemnity basis.