Reginald Alfred Becker v Public Trustee of New South Wales & 2 ors [2006] NSWSC 1146

Reginald Alfred Becker v Public Trustee of New South Wales & 2 ors [2006] NSWSC 1146

The charities failed to demonstrate reasonable grounds for contesting the will on undue influence, and maintained this ground despite a lack of evidence. Their refusal to accept a genuine Calderbank offer during trial was unreasonable. Thus, applying the ordinary rule that costs follow the event and in light of the Calderbank offer, the court ordered the charities to pay the plaintiff’s costs on the ordinary basis up to the offer’s expiry and on the indemnity basis thereafter.

Parties
Plaintiff: Reginald Alfred Becker; First Defendant: Public Trustee of New South Wales; Second Defendant: The Royal Flying Doctor Service; Third Defendant: The Salvation Army
Jurisdiction
Australia
Judgment Date
02 November 2006
Procedural Posture
Contested Probate Application / Costs Determination After Judgment Granting Probate
Outcome
Costs orders made against second and third defendants—costs up to 4pm 30 June 2006 on the ordinary basis, thereafter on an indemnity basis. First defendant: no costs order. Plaintiff also entitled to costs of costs application.
Legal Topics
Probate, Costs, Undue Influence, Approval of Will, Offers of Compromise, Calderbank Offers
Succession Law Civil Procedure Probate Costs Undue Influence Approval of Will Offers of Compromise Calderbank Offers

Case Brief

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Parties

Reginald Alfred Becker

Plaintiff

Public Trustee of New South Wales

First Defendant

The Royal Flying Doctor Service

Second Defendant

The Salvation Army

Third Defendant

Procedural Posture

Contested Probate Application / Costs Determination After Judgment Granting Probate

Legal Issues

  1. 1 Whether unsuccessful party should pay costs of the proceedings in contested probate litigation
  2. 2 Whether exceptions to the ordinary costs rule apply
  3. 3 Whether offers of compromise and Calderbank offers justify indemnity costs in probate proceedings

Ratio Decidendi

The charities failed to demonstrate reasonable grounds for contesting the will on undue influence, and maintained this ground despite a lack of evidence. Their refusal to accept a genuine Calderbank offer during trial was unreasonable. Thus, applying the ordinary rule that costs follow the event and in light of the Calderbank offer, the court ordered the charities to pay the plaintiff’s costs on the ordinary basis up to the offer’s expiry and on the indemnity basis thereafter.

Court Disposition

Costs orders made against second and third defendants—costs up to 4pm 30 June 2006 on the ordinary basis, thereafter on an indemnity basis. First defendant: no costs order. Plaintiff also entitled to costs of costs application.

Orders

  • No order as to the costs of the first defendant.
  • The second and third defendants pay the plaintiff's costs of the proceedings up to 4pm 30 June 2006 on the ordinary basis, and thereafter on an indemnity basis.