Wilcox v Wilcox (No 2) [2019] NSWSC 470

Wilcox v Wilcox (No 2) [2019] NSWSC 470

The applicant was required to pay the first and second respondents' costs on an indemnity basis because his conduct caused unnecessary costs: the review application was dismissed, the access sought before the Court differed from the access refused by the Registrar, the second respondent was unnecessarily joined and not removed despite that being made clear, and the applicant made unsubstantiated allegations of fraud or misconduct which led the first respondent to oppose access. Those circumstances justified a special costs order, and access to the executor's affidavit and inspection of the original Will was made conditional on the costs being paid or otherwise secured in advance.

Jurisdiction
Australia
Judgment Date
30 April 2019
Procedural Posture
Application Under R 49.19 of the Uniform Civil Procedure Rules 2005 (nsw) Concerning Access to a Probate File / Costs Determination on the Papers Following Wilcox V Wilcox [2019] NSWSC 306
Outcome
Application costs determined against the applicant on an indemnity basis; access to the executor's affidavit and inspection of the original Will made conditional on payment or security for those costs.
Legal Topics
['indemnity Costs' 'party/party Costs' 'access to Probate File' "review of Registrar's Decision" 'joinder of Parties' 'unsubstantiated Allegations of Fraud']
['costs' 'civil Procedure' 'probate and Succession'] ['indemnity Costs' 'party/party Costs' 'access to Probate File' "review of Registrar's Decision" 'joinder of Parties' 'unsubstantiated Allegations of Fraud']

Case Brief

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Procedural Posture

Application Under R 49.19 of the Uniform Civil Procedure Rules 2005 (nsw) Concerning Access to a Probate File / Costs Determination on the Papers Following Wilcox V Wilcox [2019] NSWSC 306

Legal Issues

  1. 1 ["Whether the applicant should pay the first and second respondents' costs of the application." 'Whether those costs should be ordered on an indemnity basis.' "Whether access to the executor's affidavit filed in support of the probate application and inspection of the original Will should be conditional on payment or security for those costs." 'Whether the second respondent was unnecessarily joined as a party.' "Whether the applicant's unsubstantiated allegations of fraud or misconduct led to unnecessary costs being incurred."]

Ratio Decidendi

The applicant was required to pay the first and second respondents' costs on an indemnity basis because his conduct caused unnecessary costs: the review application was dismissed, the access sought before the Court differed from the access refused by the Registrar, the second respondent was unnecessarily joined and not removed despite that being made clear, and the applicant made unsubstantiated allegations of fraud or misconduct which led the first respondent to oppose access. Those circumstances justified a special costs order, and access to the executor's affidavit and inspection of the original Will was made conditional on the costs being paid or otherwise secured in advance.

Court Disposition

Application costs determined against the applicant on an indemnity basis; access to the executor's affidavit and inspection of the original Will made conditional on payment or security for those costs.

Orders

  • ['Order that the applicant pay the costs of the first and second respondents in relation to the application on an indemnity basis.' "Order that access to the executor's affidavit filed in support of the application and inspection of the original Will is conditional on those costs being paid or otherwise secured in...