William Reginald d’Apice v Galina Gutkovich; Estate of the late Irene Rachel Abraham (No. 3) [2010] NSWSC 1458

William Reginald d’Apice v Galina Gutkovich; Estate of the late Irene Rachel Abraham (No. 3) [2010] NSWSC 1458

The plaintiff's offer was not an offer of compromise within r 20.26 because it was not exclusive of costs. In any event, special probate costs principles justified not ordering the defendant to pay the plaintiff's indemnity costs, as there was a public interest in having the defendant contest the deceased's testamentary capacity and the defendant did not act unreasonably in rejecting the offer if treated as a Calderbank offer.

Jurisdiction
Australia
Judgment Date
03 December 2010
Procedural Posture
Probate Costs Application / Consequential Costs Orders After Probate of the Will in Solemn Form Was Granted to the Plaintiff
Outcome
The plaintiff's application for indemnity costs from 16 July 2010 was refused; the defendant was ordered to bear her own costs, with her costs of the day's application payable out of the estate on the ordinary basis.
Legal Topics
['probate Costs' 'offer of Compromise' 'indemnity Costs' 'testamentary Capacity' 'calderbank Offer']
['probate' 'civil Procedure' 'costs'] ['probate Costs' 'offer of Compromise' 'indemnity Costs' 'testamentary Capacity' 'calderbank Offer']

Case Brief

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Procedural Posture

Probate Costs Application / Consequential Costs Orders After Probate of the Will in Solemn Form Was Granted to the Plaintiff

Legal Issues

  1. 1 ["Whether the defendant should pay the plaintiff's costs on an indemnity basis from the date of the plaintiff's offer." "Whether the plaintiff's offer was an offer of compromise made in accordance with r 20.26 of the Uniform Civil Procedure Rules 2005." 'Whether special probate costs principles justified a contrary costs order.' 'Whether the defendant acted unreasonably in not accepting the offer if it were considered as a Calderbank offer.']

Ratio Decidendi

The plaintiff's offer was not an offer of compromise within r 20.26 because it was not exclusive of costs. In any event, special probate costs principles justified not ordering the defendant to pay the plaintiff's indemnity costs, as there was a public interest in having the defendant contest the deceased's testamentary capacity and the defendant did not act unreasonably in rejecting the offer if treated as a Calderbank offer.

Court Disposition

The plaintiff's application for indemnity costs from 16 July 2010 was refused; the defendant was ordered to bear her own costs, with her costs of the day's application payable out of the estate on the ordinary basis.

Orders

  • ["Order that there be no order as to the defendant's costs to the intent that the defendant bear her own costs." "Order that the defendant's costs of today's application be paid out of the estate on the ordinary basis."]