Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw (No. 2) [2022] NSWSC 1484

Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw (No. 2) [2022] NSWSC 1484

It was reasonable for the defendant to have his costs paid out of the estate up to 1 April 2021, as the conduct of the testator objectively required investigation of the validity of the 2020 testamentary instrument. However, once clear expert evidence was available, it became unreasonable to maintain the contest in its adversarial form without proper enquiry, and so from 10 August 2021 the defendant must pay the plaintiff’s costs on the ordinary basis. No costs order is made from 1 April to 10 August 2021. The plaintiff's unrecovered costs are indemnified from the estate.

Jurisdiction
Australia
Judgment Date
01 November 2022
Procedural Posture
Probate Litigation Costs Determination / Post Judgment, Costs Determination After Final Orders on Probate
Outcome
Plaintiff and defendant's costs up to 1 April 2021 to be paid from the estate. Defendant to pay plaintiff's costs from 10 August 2021. Defendant bears his own costs between 1 April and 10 August 2021. Plaintiff's costs (including unrecovered) indemnified from the estate.
Legal Topics
['probate Costs' 'testamentary Capacity' 'offer of Compromise' 'calderbank Letter' 'costs Exceptions in Probate' 'court Appointed Expert Evidence']
['equity' 'wills and Estates'] ['probate Costs' 'testamentary Capacity' 'offer of Compromise' 'calderbank Letter' 'costs Exceptions in Probate' 'court Appointed Expert Evidence']

Case Brief

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Procedural Posture

Probate Litigation Costs Determination / Post Judgment, Costs Determination After Final Orders on Probate

Legal Issues

  1. 1 ['Whether the costs of proceedings should be paid out of the estate and if so, for what period and which party; Whether it was reasonable for the defendant to continue to propound the January 2020 testamentary instrument after expert evidence was provided; Whether the first or second exception to the general probate costs rule applies; What is the effect of the offer of compromise and Calderbank letter on the costs consequences; Whether the conduct of the testator or the parties was the cause of litigation for costs purposes']

Ratio Decidendi

It was reasonable for the defendant to have his costs paid out of the estate up to 1 April 2021, as the conduct of the testator objectively required investigation of the validity of the 2020 testamentary instrument. However, once clear expert evidence was available, it became unreasonable to maintain the contest in its adversarial form without proper enquiry, and so from 10 August 2021 the defendant must pay the plaintiff’s costs on the ordinary basis. No costs order is made from 1 April to 10 August 2021. The plaintiff's unrecovered costs are indemnified from the estate.

Court Disposition

Plaintiff and defendant's costs up to 1 April 2021 to be paid from the estate. Defendant to pay plaintiff's costs from 10 August 2021. Defendant bears his own costs between 1 April and 10 August 2021. Plaintiff's costs (including unrecovered) indemnified from the estate.

Orders

  • ["The plaintiff's and the defendant's costs of the proceedings up to 1 April 2021 be paid out of the estate of Apolonia Czerwaniw (defendant's costs on the ordinary basis; plaintiff's on the indemnity basis as provided in another order)" "The defendant pay the plaintiff's costs of the proceedings on and from 10...