Blendell v Byrne & Ors; The Estate of Noeline Joan Blendell (No 2)

1. [1]

   HIS HONOUR: This application for costs arises from the previous determination of six different actions, one of which was a Probate and equity proceeding, one of which was a Probate proceeding, and four of which were family provision proceedings. All were heard consecutively in February 2019. All were contested proceedings between, effectively, a father and his children, in respect of the estate of his deceased wife, who was their mother.

2. [2]

   The Court delivered principal reasons for judgment, the citation of which is Blendell v Byrne & Ors; The Estate of Noeline Joan Blendell [2019] NSWSC 583 (“the principal judgment”). Events and people are referred to in these reasons in the same way as they were in the principal judgment.

3. [3]

   Despite every effort made by the Court to encourage the settlement of the costs proceedings, those efforts proved fruitless and further argument occurred on that question, in relation to virtually all of the proceedings. Also, despite the family relationship of the principal parties, and the suggestion made by the Court that they should avoid additional costs being incurred, further evidence, comprising two affidavits, one being an affidavit with annexures (26 pages) of Mr P Murphy, Michael’s solicitor, affirmed 27 May 2019, together with an exhibit thereto (comprising about 260 pages), and another affidavit affirmed by Mr Murphy filed in Court on 3 June 2019, as well as written submissions (from Michael, comprising 28 pages, and from the children, comprising 9 pages) were relied upon.

4. [4]

   The hearing of the costs argument was listed for 2 hours and was completed within that time.

5. [5]

   In order to determine how the burden of the costs should be borne, the context in which the costs orders sought by the parties are to be determined should be stated. This, in turn, requires a summary of the principal conclusions reached in the proceedings to which reference will later be made.

6. [6]

   Because of the detailed nature of the evidence, it has been necessary to write a lengthy judgment on the question of costs, despite what was written in Luxmore Pty Ltd v Hydedale Pty Ltd (2008) 20 VR 481; [2008] VSCA 212, Maxwell P and Kellam JA, at [12]:

The evidence relied upon on the costs application

1. [7]

   Michael’s solicitor affirmed an affidavit on 27 May 2019. This affidavit annexed a copy of an Offer of Compromise dated 27 February 2017. (The Offer of Compromise, in fact, bears the date 27 February 2016, which was, undoubtedly, an error (as to the year). The error was not raised as being relevant by either party.)

2. [8]

   Accompanying the Offer of Compromise, was a detailed letter setting out what were said to be “incontrovertible facts” and then it suggested reasons for the likely failure of the Defendants’ defence to the Probate proceedings.

3. [9]

   The Offer of Compromise proposed that there be a grant of Probate of the 2015 Will to Michael; that Mr Byrne’s proceedings for Probate of the 2007 Will be dismissed; that each of Denise, Dominic and Nicholas, should be paid a lump sum of $10,000, and that Julian should be paid a lump sum of $5,000; and the payment of the costs of all parties, calculated on the indemnity basis, out of the estate of the deceased. It was also pointed out that each of Denise, Dominic and Nicholas, had already received a lump sum of $10,000, and that Julian had already received a lump sum of $15,000. The Offer of Compromise also proposed a payment of $1,000 to each of Erika Chloe Blendell, Mr Byrne, the Heart Foundation New South Wales, the New South Wales Breast Cancer Council, and the Salvation Army New South Wales.

4. [10]

   The offer made in the Offer of Compromise was rejected by all of the children of the deceased, and by Mr Byrne, in a letter dated 31 March 2017.

5. [11]

   At the time of this Offer of Compromise, none of the children had brought her, or his, claim for a family provision order. Importantly, the Offer of Compromise did not include a term that each should provide a release from making such a claim, the approval of which release would be sought from the Court. In other words, it left open the possibility that each of the children of Michael and the deceased could bring an application for a family provision order.

6. [12]

   Michael’s solicitor’s affidavit had annexed to it a second Offer of Compromise, this one dated 6 July 2017, which contained only an offer in respect of Dominic’s claim for a family provision order (which application had been filed on 19 June 2017). The offer made was to the effect that Dominic should receive, out of the deceased’s estate, a lump sum of $300,001, and his costs, calculated on the ordinary basis, and that the Defendant’s costs, calculated on the indemnity basis, be paid out of the estate of the deceased.

7. [13]

   Importantly, this Offer of Compromise, made in respect of Dominic’s claim, included the statement that the offer was “not intended to affect the plaintiff’s related probate claims”, and that, if accepted, “the resulting agreement will be conditional upon the plaintiffs being unsuccessful in the probate proceedings”. This statement was significant, in the circumstances of Dominic’s case for a family provision order, as it made clear that the offer was not intended to bring an end to the Probate suit, which, had it been successful, would have resulted in greater provision being made for Dominic under the 2007 Will. This offer was not accepted by Dominic.

8. [14]

   None of the Defendants read any evidence on the costs issue.

The WhatsApp messages

1. [15]

   Also annexed to the solicitor’s affidavit was a copy of two Notices to Produce, each dated 20 February 2019, one of which was addressed to Dominic, and the other of which was addressed to Julian. Each required the production, by the recipient, of various WhatsApp messages, as well as the “[e]xtract of those parts of the draft affidavit of Nicholas Charles Blendell prepared by the solicitors for the [D]efendants relating to the deponent’s conversations with [the deceased] following the making of the [2015 Will], together with any coverpage [sic] for the draft affidavit”.

2. [16]

   The Notices to Produce were served, therefore, shortly before the hearing. Thus, it must have been clear to each of the recipients that Michael, and his legal representatives, were aware of a conversation between the deceased and Nicholas shortly after she had made the 2015 Will.

3. [17]

   Also annexed to Michael’s solicitor’s affidavit, was a copy of an email, dated 21 February 2019, from Ms Mena, the Defendants’ solicitor, attaching what was described as the “[c]hat history” as “WhatsApp chat with FAM” (comprising 2 pages), “WhatsApp Chat with the Blendells” (comprising 13 pages), “WhatsApp Chat with Mum” (comprising 100 pages) “WhatsApp Chat with Trio” (comprising 1 page), “WhatsApp Chat with Nick Blendell” (comprising 32 pages) and “WhatsApp Chat with Nick…Dom…Jules Room” (381 pages).

4. [18]

   A bundle of documents in a folder comprised a number of the WhatsApp messages. The folder became Ex. CA1 on the costs application.

5. [19]

   Objection was taken to a number of the documents included in Ex. CA1 but, at the hearing, there were very few of the messages ultimately objected to. I made rulings on those and naturally, they have been ignored.

6. [20]

   I shall not set out all of the relevant messages in these reasons, but I have included, as a Schedule, to these reasons, the messages that seem to me to be relevant (with editorial corrections for ease of reading).

The Submissions on Costs

1. [21]

   In written submissions by counsel, Michael submitted that, based on the manner in which the Probate and the Equity proceedings were conducted, by Julian, Dominic, Nicholas (up to the date on which the latter filed a submitting appearance) and Mr Byrne, each of those parties should be ordered to pay Michael's costs of the Probate proceedings.

2. [22]

   Michael pointed out that Nicholas had filed a submitting appearance on 1 May 2018, and that his former solicitor, Ms Mena, had filed a Notice of Intention of Ceasing to Act on 11 February 2018, and a Notice of Ceasing to Act on 19 February 2018.

3. [23]

   It was submitted that Nicholas should not be penalised for any delay in filing the submitting appearance with the Registry when all of his siblings, from at least 11 February 2018, must have proceeded on the basis that he no longer wished to continue with the challenge, made by them, and by Mr Byrne, to the validity of the 2015 Will.

4. [24]

   Michael invited the Court to excuse Denise from the imposition of a costs order. He submitted that any order for costs of the Probate proceedings should not be borne by her. I have taken this into account in determining the costs orders that should be made in respect of the Probate proceedings.

5. [25]

   Michael also submitted that certain conduct, particularly by Julian, Dominic, Nicholas, and, implicitly, by Mr Byrne, up to the date on which Nicholas had filed a submitting appearance, warranted an order that they, and Mr Byrne, pay Michael's costs, calculated on the indemnity basis, of the Probate proceedings.

6. [26]

   In addition, Michael relied, as another, and independent, basis for an order for indemnity costs, on the Offer of Compromise, incorrectly dated 27 February 2016, made in accordance with the rules, and, alternatively, made as a Calderbank offer, to which reference has been made.

7. [27]

   (Although it was submitted by Michael, I do not accept that Mr Byrne should not have brought the proceedings to propound the 2007 Will. That was necessary, even though there was no dispute, in the event the 2015 Will was not a valid Will, that there should be a grant of Probate in solemn form of the 2007 Will.)

8. [28]

   In relation to the costs of the Equity proceedings, Michael submitted that costs should follow the event, and that as the same, or similar facts, had been relied upon, the costs should be calculated on the indemnity basis also.

9. [29]

   In relation to the family provision proceedings, Michael submitted that:

10. [30]

    In relation to the Probate proceedings, Julian, Dominic, Denise and Mr Byrne submitted that the deceased’s conduct caused the litigation; that the Court had found “there are circumstances that exist which excite the suspicion of the Court” (the principal judgment, at [475]); that reasonable suspicion arose concerning the deceased’s lack of knowledge and approval of the contents of the 2015 Will and also Michael’s undue influence in its preparation and execution.

11. [31]

    In relation to Mr Byrne, it was submitted that the real contest had been between Michael and his children in respect of their competing beneficial entitlements under the 2015 and 2007 Wills, respectively. In light of the above, it was submitted, on behalf of Mr Byrne, that he had acted properly and reasonably in commencing and carrying on proceedings 2016/302424, and as a defendant in proceedings 2016/188756, justifying an order that his costs, calculated on the indemnity basis should be paid out of the deceased’s estate.

12. [32]

    It was accepted that in the event (contrary to the Defendants’ submissions) a costs order was made against them, Nicholas (as the fourth Defendant) was jointly and severally liable for costs incurred until the time of filing his submitting appearance.

13. [33]

    In the Probate proceedings 2016/188756, the following costs orders were proposed by counsel for the Defendants:

14. [34]

    In relation to the family provision proceedings brought by Julian, he made the same submission in regard to costs as did Michael.

15. [35]

    In relation to Dominic, it was submitted that he should receive his costs, calculated on the ordinary basis, out of the estate of the deceased and that Michael should receive his costs, calculated on the indemnity basis, out of the estate of the deceased.

16. [36]

    The Defendants submitted that, for various reasons, the Offers of Compromise referred to were not relevant to the determination of the costs issues. The submissions in relation to this issue can be summarised as follows:

General Principles relating to Costs

1. [37]

   In what follows, I make clear that I am not attempting to lay down any strict guidelines, to prescribe a general principle and exceptions, or even to give exhaustive examples on how costs should be determined.

2. [38]

   Ultimately, the court has a broad discretion as to costs under the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and that discretion must be exercised judicially and according to the circumstances and particulars of each individual case. What I shall identify calls attention to discretionary considerations that may be taken into account in the exercise of the court’s power to determine who is to bear the burden of the costs of the proceedings.

3. [39]

   Of course, one starts in any determination of costs, with s 98(1) of the Civil Procedure Act, which provides that subject to the rules of court and to that, or any other Act, costs are in the discretion of the Court, and the Court has full power to determine by whom, to whom, and to what extent, costs are to be paid. The Court may order that costs are to be awarded on the ordinary basis or on the indemnity basis.

4. [40]

   UCPR r 42.1 provides that costs should follow the event unless it appears to the Court that some other order should be made as to the whole, or any part of the costs.

5. [41]

   UCPR r 42.20(1) provides that if the Court makes an order for the dismissal of proceedings, then unless the Court otherwise orders, the plaintiff must pay the defendant’s costs of the proceedings to the extent to which the proceedings have been dismissed.

6. [42]

   Relevant to the Probate proceedings is UCPR r 42.14, which provides:

7. [43]

   Relevant to the costs of Dominic’s family provision proceedings, is UCPR r 42.15A, which provides:

8. [44]

   There is no suggestion that the Civil Procedure Act and the UCPR do not apply to Probate proceedings or to family provision proceedings.

9. [45]

   In Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd (2010) 182 FCR 84; [2010] FCAFC 5, Gray J, in the Full Court, wrote, at [17]:

10. [46]

    Ultimately, the Civil Procedure Act and the UCPR require the Court to make such order as it thinks just in the particular circumstances of the case: Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343, at [10].

11. [47]

    As was noted (albeit in another context) in Kazar (Liquidator) v Kargarian; In the Matter of Frontier Architects Pty Ltd (In Liq) [2011] FCAFC 136, at [9] (by Greenwood and Rares JJ):

12. [48]

    In Ohn v Walton (1995) 36 NSWLR 77, at 79, Gleeson CJ (as his Honour then was) wrote:

13. [49]

    In Sahab Holdings Pty Ltd v Registrar-General (No 3) [2010] NSWSC 403, per Slattery J, at [37], it was recognised that, in an appropriate case, a costs order may be formulated to reflect the degree of success on distinct issues.

The Principles relating to Costs in Probate Proceedings

1. [50]

   In Petrovski v Nasev; The Estate of Janakievska (No 2) [2011] NSWSC 1474, I set out the principles in relation to costs in probate proceedings that apply, at [6]-[19]:

2. [51]

   In relation to Mr Byrne’s costs, reference should be made to Pates v Craig; Estate of the late Joyce Jean Cole (NSWSC, 5 September 1995, Santow J, unrep) in which it was said:

3. [52]

   It must be remembered, also, that probate litigation is not entirely between parties, because they did not make the will in dispute, and the Court is required to determine whether a document of somebody, who is dead, is a valid testamentary instrument. There is a public interest in ensuring that the matter is properly proved: see Tu v Tu Estate of Tu [2008] NSWSC 458.

4. [53]

   Alexander Learmonth et al (eds), Williams, Mortimer and Sunnucks in Executors, Administrators and Probate (21st ed, 2018, Thomson Reuters), in the United Kingdom context, at [33-01] and [33-05] observed (citations omitted):

5. [54]

   As was said over a century ago in Miller’s Probate Practice (Maxwell: 1900 Ed.), at 438-439:

Application for Indemnity Costs

1. [55]

   Black CJ, in Re Wilcox; Ex parte Venture Industries (No 2) [1996] FCA 1942; (1996) 72 FCR 151, at 152 and 153, wrote:

2. [56]

   In Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, Basten JA (with whom Giles JA and Young CJ in Eq agreed on this point), wrote, at [106]-[113]:

3. [57]

   In Liverpool City Council v Estephan Estephan (Executor and Administrator of the Estate of the late Jocelyn Estephan) [2009] NSWCA 161, the Court of Appeal stated, at [100]-[101]:

4. [58]

   In summary, then, an order for costs calculated on the indemnity basis, usually, can be justified because, in the circumstances, it would be unfair or unjust to require the successful party to bear costs calculated on the ordinary basis, or where there may be some special, or unusual, feature in the case to justify the Court in departing from the usual order. The question will be whether the particular facts and circumstances of the case warrant the making of an order for costs other than on the ordinary basis.

5. [59]

   If a party’s conduct is relied upon, the conduct which falls to be assessed in determining whether an indemnity costs order should be made is that which relates to the proceedings in which the order is sought.

6. [60]

   The categories of case in which the discretion to award costs calculated on the indemnity basis may be properly exercised are not closed. Also, the mere existence of facts and circumstances capable of warranting an order for costs calculated on the indemnity basis does not mean that the Court is obliged to make such an order, as costs, ultimately, remain in the discretion of the Court.

Indemnity costs on the basis of an Offer of Compromise

1. [61]

   In relation to indemnity costs based on an offer of compromise, in Meres v Meres (No 2) [2017] NSWSC 523, I summarised the legal principles relating to Offers of Compromise, at [35]-[44]. Of particular relevance to the question of whether, and when, the Court’s discretion should be used when determining issues of costs, I noted, at [38] (citing my previous determination in Hinderry v Hinderry (No 2) [2016] NSWSC 1577, though that was a case in which a family provision order was not made):

2. [62]

   I added, at [43]-[44]:

3. [63]

   In Automotive Holdings Group Ltd v Prime Constructions Australia Pty Ltd (No. 2) [2019] NSWSC 315, at [12], Slattery J confirmed the relevant applicable costs principles. Slattery J opined further, at [18], that the Court of Appeal’s decision in Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344, at [9], remains authority for the proposition that an offer of compromise made pursuant to the UCPR must contain “a real and genuine element of compromise”.

4. [64]

   Slattery J also wrote, at [25], that:

5. [65]

   In Rogers v Rogers [2018] NSWSC 1982 , I wrote, in relation to Offers of Compromise, at [314]:

6. [66]

   At [316]-[317], I referred to what Kunc J had written in Bates v Cooke (No 2) [2014] NSWSC 1322 (which was cited, with approval, by White J (as his Honour then was) in AB v Curry (No 2) [2015] NSWSC 1209, at [4], and by the Supreme Court of Victoria in Briggs v Mantz (No 2) [2014] VSC 487, at [33]-[35], and Smith v Whittaker [2016] VSC 287, at [36]:

7. [67]

   To the above authorities, I should add Commonwealth of Australia v Gretton [2008] NSWCA 117, at [121], in which Hodgson JA (with whom Mason P agreed) observed that:

8. [68]

   His Honour’s observation was cited, with apparent approval, by the Court of Appeal, more recently, in Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34, at [98], and the principle was repeated, by McColl JA, in Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266, at [9].

9. [69]

   I also remember that the Court is increasingly alert to the dangers of encouraging litigation, and discouraging settlement of such claims, at an early stage, if costs are allowed out of the estate. Where possible, all minds should concentrate, regularly, upon the need to address the strength, or otherwise, of the case, the benefits and detriments of advancing particular arguments, and the wisdom of searching for alternative forms of resolution of the dispute, whether by compromise or even abandonment: see, albeit in another context, Pearson & Ors (The Joint Administrators of Lean Brothers International (Europe)) v Lehman Brothers Finance SA & Ors [2010] EWHC 3044 (Ch), per Briggs J, at [12].

10. [70]

    Finally, I refer to what was recently written by Leeming JA in Nadilo v Souris (No 2) [2019] NSWSC 246, at [24]:

Costs in Family Provision Proceedings

1. [71]

   Section 99 of the Succession Act 2006 (NSW) provides for an unfettered discretion as to how the costs of the proceedings for a family provision order may be borne. However, that section does not apply to costs as between party and party, but rather to costs to be paid out of the estate.

2. [72]

   In Harkness v Harkness (No 2) [2012] NSWSC 35 at [17]-[18], I wrote:

3. [73]

   In Bruce v Greentree (No 2) [2015] NSWSC 1636 at [43], I wrote:

4. [74]

   I referred to all of these principles, more recently, in Penfold v Predny [2016] NSWSC 472, at [161]-[166] and in Stojanovski v Stojovski [2016] NSWSC 976, at [265].

Summary of Findings

1. [75]

   For ease of reference, I shall next provide a summary of the findings made in the principal judgment. The focus of the disputes that arose for determination in the Probate proceedings related, principally, to whether the 2015 Will was the last valid of the deceased. (There was no dispute that if it was not, the 2007 Will was the last valid Will and that Probate of the 2007 Will should be granted to Mr Byrne.)

2. [76]

   In the Probate proceedings, there was an amended Cross-Claim, filed on 28 March 2018, in which the four children of the deceased asked the Court to impose a constructive trust over all of the property of the deceased that Michael would receive pursuant to the 2015 Will on the basis that the gift of the property comprising the deceased’s estate to him was procured by undue influence in equity.

3. [77]

   The principal protagonists/Defendants in the Probate proceedings and in the Equity proceedings were Julian and Dominic. Denise played a part, as she was a named Defendant, and Plaintiff, respectively, but there is little doubt that she was not a principal participant in the decisions made and the instructions given. (This is clear from some of the Whats App messages that passed between her three siblings, which I shall not repeat.)

4. [78]

   Nicholas filed a submitting appearance on 1 May 2018, in the Probate proceedings (although, at least initially in the Probate proceedings, he was represented by the solicitors who represented, and who continue to represent, his three siblings in those proceedings). Until that time, it is likely that he participated with Julian and Dominic in the decisions made to bring and continue the Probate proceedings. Nicholas, along with Michael, was named as a Cross-Defendant in the amended Cross-Claim (filed on 28 March 2018 on behalf of each of Dominic, Julian and Denise as Cross-Claimants) in the Equity proceedings. In the principal proceedings, he was a witness whose affidavit was read as part of Michael’s case, and he was cross-examined by the different counsel for his siblings.

5. [79]

   For determination, in the event that Probate in solemn form of the 2015 Will was granted to Michael, and the equity claim was unsuccessful, were the separate claims for a family provision order under Chapter 3 of the Succession Act, brought by each of Denise, Julian, Dominic and Nicholas in the family provision proceedings. Michael was the sole Defendant named in each of the family provision proceedings (other than the proceedings by Denise, whose Summons named Mr Byrne as the first Defendant, and Michael as the second Defendant).

6. [80]

   Michael’s case was that the 2015 Will was a simple document and that its dispositions were rational and that there was no suggestion that the deceased lacked testamentary capacity at the time she made the 2015 Will.

7. [81]

   In broad summary, the submissions made on behalf of the Defendants was that “…there are circumstances that, collectively, give rise to a well-grounded suspicion that the 2015 Will does not express the mind of the testator”. The alleged suspicious circumstances relied upon were that there was a radical departure from a previous testamentary instrument (the 2007 Will); that the sole beneficiary was the controlling force in the preparation and execution of the 2015 Will; and that any reading over of the 2015 Will, if the deceased did, in fact, read it, was insufficient to enable the Court to conclude that she knew and approved of the terms of the 2015 Will. In addition, the Defendants relied upon undue influence in the Probate sense, submitting that Michael had unduly influenced the deceased. They relied, principally, upon Michael’s role in drafting the 2015 Will.

8. [82]

   Although, as previously stated, there was no allegation that the deceased lacked testamentary capacity, the Defendants asserted, in the fourth amended Defence, that “following brain surgery she suffered memory loss, slurred speech, and never fully recovered. Oral and intravenous chemotherapy as well as radiation caused extreme lethargy, digestive problems, diarrhoea and memory loss worsening over time”. This required a detailed consideration of the medical evidence.

9. [83]

   Overall, I was satisfied that following her operation in December 2014, and a reasonable recovery period, the deceased’s health improved and that the medical evidence did not support the description of the deceased as asserted by the Defendants, particularly in mid to late 2015.

10. [84]

    Another of the central planks of the Defendants’ case was that the deceased had made the 2007 Will taking into account her strained relationship with Michael and having considered his previous conduct towards her. It was submitted that, bearing in mind their relationship, the 2015 Will would not have been signed if she had known, or approved, of its terms, and that it would not have been signed, had her judgement not been overborne by the (undue) influence of Michael.

11. [85]

    In relation to the relationship of the deceased and Michael, I concluded that there was no evidence, at all, that she had ever sought, or obtained, any legal advice as to steps she could take to obtain a divorce order. There was also no hint in the evidence, that, at any time after November 2014, the deceased had become increasingly isolated, or that her contact with her family members or her friends was restricted, in any way. I also concluded that there was no evidence that Michael had become more controlling of the deceased’s activities.

12. [86]

    The evidence overall did not satisfy me that a relationship of ascendancy, power, or domination, on the one hand, and dependence or subjection on the other, existed in Michael’s relationship with the deceased. The Defendants did not satisfy me that there was such a relationship of influence by Michael (the stronger party) over the deceased (the weaker party).

13. [87]

    In relation to undue influence in equity, the substance of the claim was that from about December 2014 until her death, Michael “assumed a position of ascendancy or domination over the deceased who was vulnerable to his influence”, as a result of which “the deceased was unable to exercise her free and independent judgment [sic] in executing [the 2015 Will] disposing of her estate to [Michael] as sole beneficiary contrary to the intention expressed in the [2007 Will] disposing of her property in favour of her children”. I concluded also that the claim of undue influence, in the equity sense, had no solid foundation in the evidence. Accordingly, the Defendants’ Cross-Claim did not succeed. In the circumstances, the Defendants’ Cross-Claim was dismissed.

14. [88]

    In all of the proceedings, an important piece of evidence was a conversation between Nicholas and the deceased that was said to have been repeated to Dominic and Julian after the death of the deceased. (I was not satisfied that the conversation had been repeated to either of them before her death.)

15. [89]

    I concluded that the conversation did not suggest that the deceased required any more assistance, or explanation, concerning the terms and effect of the 2015 Will. On the contrary, the conversation demonstrated, clearly, that she had a good understanding of the provisions of the 2015 Will and that she had approved of its terms. This was powerful evidence in support of the deceased’s knowledge and approval of the 2015 Will.

16. [90]

    There was also evidence that there had been many opportunities for the deceased to complain about the 2015 Will not being what she wanted and also to make another will, if that was what she really wished to do. The deceased also did not take up the opportunity, offered to her by Nicholas, to obtain legal advice. She, herself, chose not to do so.

17. [91]

    Michael called a number of witnesses who were not family members. I found the evidence that each gave inherently probable, and I had no hesitation in accepting her, or his, evidence respectively. Importantly, I had no hesitation in accepting the evidence of each where it differed from the evidence or perceptions of any of the Defendants.

18. [92]

    Overall, and notwithstanding his financial interest in succeeding in the Probate proceedings, I found Michael to be a witness who was endeavouring to give a truthful account of how he dealt with the deceased and the way in which he had prepared the 2015 Will. I was satisfied that I should accept his evidence.

19. [93]

    I was not impressed with Julian’s evidence and there were a number of aspects of his evidence that I did not accept. One particular aspect of his evidence that I found implausible was his statement that he did not recall Nicholas telling him, after the death of the deceased, that the deceased had told Nicholas that Michael was to receive the whole of her estate. I was satisfied that, intentionally, he gave untruthful evidence on the topic of his recollection.

20. [94]

    Even though he denied any knowledge of the 2015 Will until after the death of the deceased, Dominic knew that the deceased was going to make a Will, in 2016, dealing with the Malaysian property. Whilst I was unable to conclude that, prior to the death of the deceased, he knew of the conversation that Nicholas had with the deceased, there is little doubt that he knew about the conversation that Nicholas had with the deceased about the 2015 Will shortly after her death.

21. [95]

    It is this conversation between Nicholas and the deceased, repeated to Julian and Dominic shortly after the death of the deceased, which has played a central part in the argument relating to the costs of the Probate proceedings.

22. [96]

    As I wrote in the principal judgment, “the concealment of such information, gained before the commencement of the Probate proceedings, and before the filing of the defence to Michael’s Statement of Claim, does not assist Dominic or Julian”. Regrettably, from their point of view, more must be said about their conduct in this regard.

23. [97]

    As indicated earlier in these reasons, in relation to each family provision claim, the claim by each of Denise and by Nicholas was resolved. In relation to the other claims, by Dominic and Julian, I concluded that each should receive provision out of the estate of the deceased.

24. [98]

    I provided the parties with a provisional form of orders, in each matter, that I would be prepared to make. These orders have now been made and all that is left to determine is how the costs of the various proceedings should be borne.

Determination

1. [99]

   The offer made in Michael’s Offer of Compromise in respect of the Probate proceedings had the potential to be more generous than the order for costs than is now sought by the Defendants. Had the offer been accepted, the Defendants would have had their costs, calculated on the indemnity basis paid; they would each have received a modest lump sum and would still have been able to make a family provision claim, that each, subsequently, made, and succeeded in. Thus, unless otherwise ordered, Michael is entitled to a costs order, in accordance with UCPR r 42.14.

2. [100]

   I consider that there are a number of special features of the Probate and the Equity proceedings that must also be taken into consideration on the question of costs and whether an “otherwise order” should be made.

3. [101]

   In this regard, I look, particularly, at those features, from the position in which they were presented to the parties, who failed in the litigation.

4. [102]

   These features include:

5. [103]

   I gave serious consideration to whether an “otherwise order” should be made in relation to Michael’s costs, and whether those costs should not be calculated on the indemnity basis following the Offer of Compromise. It was made relatively early in the proceedings, and, probably at a time when all of the objective evidence to which I have referred, was not fully available.

6. [104]

   In this regard, also, I have also borne in mind that some investigation, in circumstances of the sole beneficiary being the author of the 2015 Will, was required. However, at the time the Offer of Compromise was served, Julian, Dominic and Nicholas (and possibly Denise) were well aware of the deceased’s conversation with Nicholas. Even if it was reasonable for them to take the view that the offer should be rejected, that is not enough to displace the rule.

7. [105]

   Whether the Defendants were able, or unable, to evaluate the nature of the offer of Compromise, does not go to the validity of the Offer of Compromise, but to the discretion conferred under the rules to “otherwise order”, that would displace his entitlement to costs on the indemnity basis. In any event, there was no evidence that each was unable to assess the reasonableness of the offer made in the Offer of Compromise served by Michael. Nor is there any evidence demonstrating that they were prepared to reconsider such an offer if it were made at a later time.

8. [106]

   The nature of Michael’s case was clear. It was that the 2015 Will was a simple Will; he was the deceased’s husband for over 50 years; as the evidence revealed, the deceased had informed Nicholas of its terms; and no complaint was made by the deceased, at any time, about its terms or about Michael’s conduct in relation thereto.

9. [107]

   In both the Probate proceedings, the Equity proceedings and the family provision proceedings, each of Julian, Dominic and Denise, was advancing a competing claim for his, and her, own financial benefit, respectively. In this regard, at least so far as the Probate proceedings are concerned, the Court should not overestimate the public interest in opposing the grant of an apparently last valid Will of the deceased. In doing what they did, after the disclosure by Nicholas of his conversation with the deceased, in circumstances where there was an Offer of Compromise served, it appears that they were prepared to take the risk as to costs. Ultimately, for them, the case appears to have been, and remained, a matter of money.

10. [108]

    The Defendants unsuccessfully opposed the grant of probate. I rejected their arguments on all aspects of the Probate proceedings and of the Equity proceedings. They failed, comprehensively, on all of the issues raised (except the issue about which there had never been any dispute – namely that Michael had prepared and drafted the 2015 Will).

11. [109]

    Having considered all of the matters in the principal judgment and the features set out above, and having given careful consideration to the submissions, no proper basis has been shown for departure from the prima facie rule that the Defendants should pay Michael’s costs of the Probate proceedings.

12. [110]

    However, I am of the view that it is appropriate to make a costs order on a broad brush approach, in order to spare all parties additional costs. As was also written by Leeming JA in Nadilo v Souris (No 2), at [32]:

13. [111]

    (I substitute “proceedings” for “categories” in the second line.)

14. [112]

    Taking that approach, a just result is that each of Julian and Dominic should pay one quarter of Michael’s costs, pursuant to UCPR r 42.14(2), calculated on the indemnity basis as from the beginning of the day following the day on which the Offer of Compromise was made, and calculated on the ordinary basis “up to the time from which those costs are to be assessed on an indemnity basis” of the Probate and of the Equity proceedings. (The costs of the Equity proceedings should not involve additional costs as the evidence relied upon was essentially the same.)

15. [113]

    In relation to the other half of those costs, I have taken into account the conduct of Denise and Nicholas and the order that was sought by Michael in relation to each of them.

16. [114]

    In relation to Nicholas, Michael, by his counsel in their written submissions, sought that:

17. [115]

    (In Gilles v Palmieri [2018] NSWSC 350, the principles relating to the consequences of the filing of a submitting appearance, for the costs of proceedings (albeit in another context), were discussed, at [46]-[48]). There is no reason why the costs sought by Michael, in relation to Nicholas should not be made.

18. [116]

    In relation to Denise, it was submitted that any order for costs in the Probate proceedings should not be borne by Denise. I am prepared to make this order on the basis that it will not impact upon the order for costs to be paid by each of Julian and Dominic.

19. [117]

    Because he played no part in the proceedings, I do not propose to make any order that Mr Byrne receive his costs of the Probate proceedings, or that he should pay any costs of the Probate proceedings. No suggestion was made by Julian or Dominic that he should bear any part of Michael’s Probate costs. Nor is there any evidence that he was aware of the conversation between the deceased and Nicholas.

20. [118]

    In the circumstances, it would not be just to order Julian and Dominic to pay all of Michael’s costs of the Probate and Equity proceedings (even though it appears that, for the major part of the proceedings, they, together, were the principal drivers of the litigation). In view of what is written above, I have limited the total amount of costs that they should pay so as to avoid arguments on contribution.

21. [119]

    I have, of course, considered the effect of an order of the kind proposed upon the financial circumstances of each of Julian and Dominic. An adverse costs order, particularly of the type sought, against each of them, will detract from the provision made in the family provision proceedings for each of them. However, this factor does not go to the question whether part of Michael’s costs of the Probate and the Equity proceedings should be ordered to be paid by them.

22. [120]

    In relation to the family provision proceedings, the only issue in respect of costs relates to whether the usual order for costs should be made, where there was an Offer of Compromise served upon Dominic which was more favourable than the result he achieved.

23. [121]

    Taking into account all of the circumstances, I am of the view that there should be no order for Dominic’s costs of the family provision proceedings, other than costs on the ordinary basis prior to the day of the making of the Offer of Compromise. He should pay Michael’s costs, calculated from the day following the service of the Offer of Compromise in those proceedings.

24. [122]

    In all of the matters, other than the two Wills of the deceased, the exhibits and the Court Books should be dealt with in accordance with UCPR r 31.16A and r 33.10 and Practice Note No SC Gen 18.

25. [123]

    In the circumstances, the Court: