Battenberg v Phillips

The defendants in these proceedings are the executors of the estate of the late Blanche Condon, who died on 13 December 2016. The deceased made a will on 22 November 2016 (the Will).

The plaintiff, Mr Andrew Battenberg, is a nephew of the deceased.

These reasons concern the executors’ notice of motion filed on 9 December 2025 seeking orders that Mr Battenberg provide security for their costs in the proceedings in such sum and on such terms as the Court determines, that the proceedings be stayed until such security is provided, and an order that the proceedings be dismissed, or that the executors have liberty to apply to have the proceedings dismissed, if the security is not provided within 28 days of the order.

At the conclusion of the hearing of the motion on 27 March 2026, I made orders requiring Mr Battenberg to provide security for the executors’ costs in the sum of $253,000 by paying that sum into court, staying the proceedings until such security is provided, and granting leave to the executors to apply for dismissal of the proceedings in the event that the security is not provided within 28 days. The orders were made on the basis that my reasons would be published as soon as practicable thereafter. These are those reasons.

The executors obtained a grant of probate in solemn form after a contested hearing before Henry J in earlier proceedings in this Court in which Mr Battenberg unsuccessfully challenged the validity of the Will: The Estate of Blanche Minnie Condon [2020] NSWSC 19. Mr Battenberg’s appeal from her Honour’s decision was dismissed: Battenberg v Phillips [2020] NSWCA 249. I shall refer to those proceedings as the probate proceedings and the probate appeal.

Mr Battenberg was ordered to pay the executors’ costs of the probate proceedings and the probate appeal. Those costs were subsequently assessed and the executors registered the assessors’ determinations as judgments in this Court in the amounts of $379,128.60 on 11 August 2021 (the executors’ costs of the probate proceedings and their costs of the assessment), $12,226.50 on 13 August 2021 (the executors’ costs of Mr Battenberg’s unsuccessful application for a review of the assessor’s determination), and $41,065.97 on 19 August 2021 (the executors’ costs of the probate appeal).

Mr Battenberg resides in the United Kingdom. He made an affidavit in the present proceedings on 24 March 2026 deposing that his assets as at the date of that affidavit are:

There is no evidence that Mr Battenberg or the two trusts referred to above have any assets in Australia. As will become apparent later in these reasons, a Judge of the High Court of Justice in London has formed the view that the Battenberg 103 Trust “does not exist and never has”. The security for costs motion was heard on the basis that all of Mr Battenberg’s assets, including any assets in which he has an interest as a beneficiary of those trusts, are located in the United Kingdom.

On 14 October 2021, the executors registered the Supreme Court judgments in respect of the costs of the probate proceedings and the probate appeal as judgments against Mr Battenberg in the High Court of Justice in London pursuant to the Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK).

On 1 September 2022, Mr Battenberg applied for a stay in respect of the registered judgments. That stay was granted for a limited period until 30 November 2022.

On 21 November 2022, Mr Battenberg applied to set aside the registration of the judgments. That application was dismissed with costs on 27 March 2023. The orders of the High Court of Justice dismissing the application record that the application was found to be “totally without merit”.

On 21 June 2023, Mr Battenberg commenced fresh proceedings against the executors in the High Court of Justice seeking to prosecute a contractual claim against the executors which he had expressly abandoned in the probate proceedings in this Court. That application was dismissed as an abuse of process on 9 February 2024. Mr Battenberg was ordered to pay the executors’ costs.

On 4 April 2024, the High Court of Justice made an interim charging order in favour of the executors against Mr Battenberg’s beneficial interest in the Andrew Battenberg Personal Injury Trust 2011 and/or his beneficial interest in the Green Valley Trust, in respect of his liability for the executors’ costs of the proceedings referred to immediately above.

On 1 October 2024, the High Court of Justice made a charging order in favour of the executors against The Beeches and Freer Gardens, after declaring that those properties were the property of the Andrew Battenberg Personal Injury Trust 2011, in respect of the Mr Battenberg’s liability for the registered judgment debts. The Court also made orders consolidating that charging order with earlier charging orders made against property of Mr Battenberg in favour of the executors, including the order made on 4 April 2024, and an order requiring Mr Battenberg to pay the executors’ costs of the application for the charging order on an indemnity basis. The reasons for judgment of his Honour Judge Berkley state:

On 15 January 2025, the executors sought orders for the sale of Freer Gardens and The Beeches by way of enforcement of the charge granted by the charging orders. Following an unsuccessful application by Mr Battenberg in July 2025 to adjourn the hearing of that application, the High Court of Justice made orders on 28 October 2025 in favour of the executors for the sale of Freer Gardens and The Beeches.

The total amount secured by the charging orders as at 28 October 2025 was £577,240.67 together with interest at the rate of £117.67 per day. The High Court of Justice ordered that the order for sale would not take effect if Mr Battenberg paid that sum to the executors by 11 November 2025, and ordered that the properties otherwise be sold without further reference to the Court at a price of not less than £700,000 for The Beeches and £150,000 for Freer Gardens.

The total amount presently owing to the executors and secured by the charging orders is £625,994, being the sum of £577,240.67 referred to in the orders made on 28 October 2025 together with accrued interest plus the assessed amount of the executors’ costs of the application for the orders for sale of Freer Gardens and The Beeches.

Mr Battenberg commenced the present proceedings on 20 October 2025. Mr Battenberg seeks an order for the revocation of the grant of probate of the Will in solemn form and a grant of letters of administration in respect of the deceased’s estate in favour of a suitable person on the basis that the deceased revoked the Will on 23 November 2016 – the day after it had been executed - by signing a document described as a “Letter of Revocation” pursuant to ss 7 and 17(3)(a) of the Wills, Probate and Administration Act 1898 (NSW). I note that ss 7 and 17(3)(a) of the Wills, Probate and Administration Act 1898 (NSW) were repealed (and the Act renamed) on 1 March 2008 by Schedule 2 of the Succession Act 2006 (NSW).

Mr Battenberg’s residence in the United Kingdom enlivens the Court’s power to make an order for security for costs. It is also a factor that weighs in favour of exercising the power to order security. However, it is not determinative. All relevant circumstances of the case must be considered in deciding whether to make an order for security and, if so, on what terms. [1] Other relevant circumstances in the present case are Mr Battenberg’s lack of assets in Australia against which any adverse costs order could be enforced; Mr Battenberg’s assets in the United Kingdom; the likely ease or difficulty of enforcing any adverse costs order against those assets having regard to the reciprocal arrangement between Australia and the United Kingdom for the enforcement of foreign judgments; [2] the additional costs of such enforcement proceedings in the United Kingdom; and whether the making of an order for security would stifle Mr Battenberg’s claim in these proceedings. [3]

As the executors submitted, Mr Battenberg’s evidence disclosed nothing about the nature or value of his beneficial interests in the Andrew Battenberg Personal Injury Trust 2011 and the Battenberg 103 Trust, although the High Court of Justice has declared that Freer Gardens and The Beeches are property of the Andrew Battenberg Personal Injury Trust 2011. As counsel for Mr Battenberg submitted, it appears from the minimum sale prices incorporated in the terms of the orders for sale of those two properties that the total net sale proceeds will likely exceed the amount presently secured by the charging orders by approximately £200,000. Being liquid assets, those net sale proceeds may readily be removed from the United Kingdom after they are paid to Mr Battenberg.

Counsel for Mr Battenberg submitted that the executors could easily and at little expense register any costs judgment of this Court in the High Court of Justice, and enforce any such registered judgment, pursuant to the Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK). That should be so, assuming that Mr Battenberg has assets of sufficient value in the United Kingdom at the time that any such judgment is registered and steps are taken to enforce it. However, in light of the evidence referred to at [9]-[17] above, as the executors submitted, there is a real risk that Mr Battenberg will take every point, including meritless points, to interfere with any such registration and to avoid or delay any enforcement, rendering the process long, complex, and costly. Counsel for Mr Battenberg submitted that, properly advised, he could not possibly engage in conduct of the kind referred to at [9]-[17] above in respect of any registration and enforcement in the United Kingdom of any costs judgment of this Court in these proceedings. I reject that submission. As pointed out by senior counsel for the executors, Mr Battenberg was legally represented, and was represented by counsel in at least some of the High Court of Justice proceedings in which he took meritless points to resist the registration and enforcement of the costs judgments against him in the probate proceedings and the probate appeal.

In circumstances where Mr Battenberg does not submit that an order for security will stultify the proceedings, an order for security is necessary in my opinion to protect the efficacy of this Court’s jurisdiction to award costs by addressing the real risk to the executors that the registration and enforcement in the United Kingdom of any costs judgment in these proceedings against Mr Battenberg would be a long, complex and costly process.

Subject to one qualification, Mr Battenberg did not dispute the executors’ solicitor’s estimate of the legal fees that the executors will incur in defending these proceedings, or the $253,000 sum sought as security for those costs. The qualification is that counsel for Mr Battenberg submitted that it would have been open to the executors to adduce evidence of their costs of registration and enforcement of any costs judgment in the United Kingdom, and to seek security for that sum only. [4] I accept that it would have been open to the executors to take that course, but it would have been an inherently difficult exercise to prepare a reasonable estimate of those costs, which would have needed to foresee and estimate the costs of potential meritless applications by Mr Battenberg. Moreover, those estimated costs would likely exceed the executors’ estimated costs of the defending these proceedings in any event, having regard to the evidence adduced by the executors identifying the amount of the costs that Mr Battenberg has been ordered to pay them in respect of each of the steps that he has taken in the High Court of Justice to set aside the registration of the costs judgments relating to the probate proceedings and the probate appeal, and subsequently to resist the enforcement of those registered judgments.

For all of those reasons, the Court made the following orders on 27 March 2026: