Blendell v Byrne & Ors; The Estate of Noeline Joan Blendell

Blendell v Byrne & Ors; The Estate of Noeline Joan Blendell - [2019] NSWSC 798 - NSWSC 2019 case summary — Zoe

[18]

JUDGMENT

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.
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.
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.
The hearing of the costs argument was listed for 2 hours and was completed within that time.
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.
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]: "In the ordinary case, it is both appropriate and desirable that a costs question be decided at the conclusion of argument. Rarely will it be necessary for a judge to give detailed reasons for decision adverting to every matter debated in argument. This court will assume, as should the parties, that every matter addressed in argument on costs has been considered. This court will set its face against any proposition which would require judges disposing of questions of costs to give elaborate reasons."

[19]

The evidence relied upon on the costs application

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

[21]

The Submissions on Costs

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.
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.
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.
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.
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.
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.
(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.)
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.
In relation to the family provision proceedings, Michael submitted that: 1. Julian was successful in his family provision claim. The usual rule referred to in the principal judgment should apply. Julian should have an order that his costs of his family provision proceedings, calculated on the ordinary basis, be paid out of the estate of the deceased. 2. Although entitled to the whole of the residue of the estate, Michael sought an order that his costs, calculated on the indemnity basis, as the Defendant, named in Julian's family provision proceedings, should be paid, or retained, as the case may be, out of the estate of the deceased. That order was not opposed. 3. In relation to Dominic, the Offer of Compromise, to which reference has been made, was served on Dominic on 6 July 2017. He obtained an order no more favourable than the terms of the offer, with the consequence that UCPR r 42.15 applied. Unless the Court orders otherwise, Dominic was entitled to an order for costs out of the estate of the deceased, assessed on the ordinary basis, up to 7 July 2017, and Michael was entitled to an order, made against Dominic, assessed on the indemnity basis, from 7 July 2017 to the conclusion of the family provision proceedings. It was put that no reason to "otherwise order" had been advanced by, or on behalf, of Dominic. 4. In relation to Denise and Nicholas, agreement had been reached on the costs of each. The order, respectively, as agreed, that Michael sought was an order that his own costs, calculated on the indemnity basis, as the Defendant, named in each of her, and his, family provision proceedings, respectively, should be paid, or retained, as the case may be, out of the estate of the deceased. That order was not opposed.
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.
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.
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.
In the Probate proceedings 2016/188756, the following costs orders were proposed by counsel for the Defendants: 1. That Michael's costs, calculated on the indemnity basis, be paid, or retained, as the case may be out of the estate of the deceased. 2. That Julian's, Dominic's and Denise's costs, calculated on the ordinary basis, be paid out of the estate of the deceased. 3. That Mr Byrne's costs, calculated on the indemnity basis, be paid out of the estate. 4. As has been stated earlier in these reasons, that Nicholas, as the fourth Defendant (in counsel's written submissions, also, incorrectly, named as the fourth Cross-Claimant - in the amended Cross-Claim, he was named as a Cross-Defendant) be jointly and severally liable for any costs ordered to be paid by the Defendants incurred until the time of filing his submitting appearance.
In relation to the family provision proceedings brought by Julian, he made the same submission in regard to costs as did Michael.
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.
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: 1. The terms contained in the Offer of Compromise made on 27 February 2017 and referred to earlier in these reasons involved "nothing more than token payments to the children, in no case exceeding $10,000". 2. (The Defendants noted, in their written submissions, that an Offer of Compromise dated 14 December 2016 had been made by Michael that had the same terms as those set out in the Offer of Compromise made on 27 February 2017. The Offer of Compromise the Defendants assert was made on 14 December 2016 was not provided to the Court, or otherwise included in the evidence. I do not propose to have regard to this Offer of Compromise.) 3. Given the small amounts offered in the Offer of Compromise on 27 February 2017, in proportion to the size of the estate and the fact that the contest in the Probate Proceedings was an "all or nothing" one between competing wills, the Plaintiff's offers could not be properly characterised as having, "a real and genuine element of compromise", but rather, simply invited capitulation: Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375, at [5]; Regency Media Pty Ltd v AVN Australia Pty Ltd [2009] NSWCA 368, at [29]-[30]. 4. The Fourth Amended Defence, filed by the Defendants, was not frivolous or vexatious. The Amended Cross-Claim was found by the Court to be arguable when challenged under a strike-out application brought by Michael. Further, "there were suspicious circumstances relating to the preparation of the 2015 Will that a reasonable person in the position of the Defendants would seek to investigate". It was, thus, not unreasonable for the Defendants to reject the Offer contained in the Offer of Compromise made on 27 February 2017, which involved a "token sum of money very early in the proceedings and representing no true compromise". 5. It was acknowledged that the Offer of Compromise made on 6 July 2017, to Dominic, for $300,001, pertaining to his family provision claim, represented a larger amount than he ultimately received, and that "at first glance it might be thought unreasonable for him to have rejected the offer". 6. Even if Dominic had accepted the offer made on 6 July 2017, he still needed to be involved as an active party in relation to the Probate proceedings, and presented sufficient evidence in relation to the family provision claim to satisfy the Court that the agreed sum of $300,001 was appropriate provision to make to him out of the estate. Other than evidence of his own financial circumstances, the evidence Dominic read in relation to his family provision claim was also evidence relevant to the Probate proceedings. There were minimal cost savings to be achieved by Dominic accepting the third offer. Dominic's failure to accept that offer was, thus, not unreasonable in the context of the overall proceedings. 7. It was inappropriate for there to be a special costs order made against Dominic on the basis of the Offer of Compromise made to him on 6 July 2017. Rather, the Court should "otherwise order" by applying the usual rule to allow the costs of a successful applicant for family provision to be paid from the estate. 8. The Defendants' written submissions referred to an Offer of Compromise, apparently made on 23 September 2017. (The Offer of Compromise was not in evidence, other than being referred to in the Defendants' written submissions). As it was not the subject of evidence I do not propose to refer to it further. (No reference should have been made to it in the written submissions.) 9. The offers made by Michael (and not accepted by the other parties) did not affect the question of costs, which costs fall to be determined by the usual principles applicable to probate and family provision litigation.

[22]

General Principles relating to Costs

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.
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.
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.
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.
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.
Relevant to the Probate proceedings is UCPR r 42.14, which provides: "(1) This rule applies if the offer is made by the plaintiff, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim no less favourable to the plaintiff than the terms of the offer. (2) Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim: (a) assessed on the ordinary basis up to the time from which those costs are to be assessed on an indemnity basis under paragraph (b), and (b) assessed on an indemnity basis: (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and (ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made."
Relevant to the costs of Dominic's family provision proceedings, is UCPR r 42.15A, which provides: "(1) This rule applies if the offer is made by the defendant, but not accepted by the plaintiff, and the defendant obtains an order or judgment on the claim no less favourable to the defendant than the terms of the offer. (2) Unless the court orders otherwise: (a) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and (b) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, assessed on an indemnity basis: (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and (ii) …"
There is no suggestion that the Civil Procedure Act and the UCPR do not apply to Probate proceedings or to family provision proceedings.
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]: "The overriding principle that costs are in the discretion of the Court can also be expressed in terms of the negative proposition that no rule or principle should be applied mechanically in the determination of the question where costs should lie in any particular case. Attention must always be paid to the particular circumstances of the individual case. The aim is to do substantial justice in relation to costs, based on the outcomes of the various issues in the proceeding, as between the entities that are parties to that proceeding."
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].
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): "The exercise of the discretion takes account of all of the contextual circumstances of the litigation and the conduct of the parties. One aspect of the award of costs is a recognition that a party has been put to expense which, taking account of the merits as ultimately found on the trial of the action, might otherwise have been avoided. That consideration does not infuse the award of costs with any sense of penalty or punishment but simply recognizes the compensatory nature of an award of costs, in context and according to principle. That is why an award of costs, although involving the exercise of a discretion, generally favours the successful party. As to the importance the community attaches to legal costs incurred of and incidental to the resolution of controversies before courts, see Clark v Commissioner of Taxation [2010] FCA 415 at [90]; Uniline Australia Ltd v S Briggs Pty Ltd (No. 2) [2009] FCA 920; (2009) 82 IPR 56 at [38]; and, Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 at [130]-[132]."
In Ohn v Walton (1995) 36 NSWLR 77, at 79, Gleeson CJ (as his Honour then was) wrote: "The usual rationale of making a costs order is that it is just and reasonable that the successful party should be reimbursed for costs incurred, in the absence of grounds connected with the charge or conduct of the proceedings which make it unjust or unreasonable that there should be such reimbursement."
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.

[23]

The Principles relating to Costs in Probate Proceedings

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]: "In Re Green [1969] WAR 67, Wolff CJ pointed out (at 83) that the general rule prescribed by the Rules, also applies in probate suits: Twist v Tye (1902) P 92; Spiers v English (1907) P 122; Middlebrook v Middlebrook (1962) 36 ALJR 216 at 217; Nicholson V Knaggs [No 3 - Severance And Costs] [2009] VSC 328 at [38]. The effect of these two rules, in this case, is that the Defendant must pay the Plaintiffs' costs unless the court otherwise orders, and the court can only order otherwise if there is a discretionary decision to depart from what the rules provide: Australiawide Airlines Limited t/as Regional Express v Aspirion Pty Limited [2006] NSWCA 365 at [10]. In other words, the rules reflect the general proposition that an award of costs is discretionary, but, generally, the discretion is exercised in favour of the successful party: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at [25]. In probate suits there are considerations that more readily affect the application of the Civil Procedure Act and the UCPR than in most other forms of litigation. These considerations act as guides to the exercise of discretion, but they are not inflexible. Before turning to the considerations, two principles that are of importance in litigation of this type should also be referred to. The first is that "parties should not be tempted into a fruitless litigation by the knowledge that their costs will be defrayed by others", and the other is that "doubtful wills should not pass easily into proof by reason of the cost of opposing them": Mitchell v Gard (1863) 3 Sw & Tr 275 at 279; 164 ER 1280 at 1281-1282. Any suggestion that there is a general rule that costs in Probate proceedings are borne out of the estate should be immediately rejected. As long ago as 1926, it was said, in Re Plant [1926] P 139, at 152: 'I should be reluctant to do anything to create the idea that unsuccessful litigants might get their costs out of the estate, without making a very strong case on facts. The lure of "costs out of the estate" is responsible for much unnecessary litigation.' In relation to the question of costs, Powell J (as his Honour then was), in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, recorded the principles generally to be applied when determining how, in Probate proceedings, the Court's discretion as to costs may be exercised. At pp 709-710, he said: '… over the years, a number of exceptions to this general rule have come to be recognised. In the field of probate litigation, two such exceptions have come to be recognised, they being: 1. Where the testator has, or those interested in residue have, been the cause of the litigation, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate; 2. If the circumstances led reasonably to an investigation in regard to the document propounded, the costs may be left to be borne by those who respectively incurred them... To these exceptions to the general principle should, perhaps, be added the principle that, although a legal personal representative may be entitled to recover from a party to litigation costs only on a party/party basis, he, as a fiduciary, retains the right to an indemnity from the estate, and, thus, may have recourse to the estate for any difference between his costs on a trustee basis and the costs recovered from a party.' This passage was approved by the Court of Appeal in Shorten v Shorten (No 2) [2003] NSWCA 60, at [15]. However, it is clear that neither of the guidelines set out in the passage is exhaustive or prescriptive. In the first of the guidelines referred to, although the word 'fault' is sometimes used, it does not necessarily mean moral fault or culpability. Rather, the touchstone is whether it was the deceased's conduct which had led to his, or her, will 'being surrounded with confusion or uncertainty in law or fact': Kostic v Chaplin [2007] EWHC 2909; [2007] All ER (D) 119. In respect of the second exception, Dixon J, in Middlebrook v Middlebrook, in the course of determining a challenge to a will founded upon lack of testamentary capacity, observed: 'It is only as a result of investigation that the reasons for finding affirmatively in favour of the testator's testamentary capacity distinctly appear. In these circumstances the proper course is to apply the principle enunciated by Sir Gorrell Barnes P that "if the circumstances lead reasonably to an investigation of the matter then the costs may be left to be borne by those who have incurred them." Spiers v English [1907] P 122 at p 123.' Whether this case falls within one, or both, of the two exceptions to the normal rule, the relevant time to consider the Defendant's position is the date of institution of the proceedings, although it must also be relevant to have regard to any knowledge or reasonable belief gained subsequently: Clay v Karlson [2001] WASC 141 at [160]. It is also useful to take account of what Powell J had said, in In the Estate of Gertrude Martha Elizabeth Hacke, Public Trustee v Wilson, (NSWSC, 13 November 1985, unreported): 'Although the authorities in which an unsuccessful defendant has been allowed his costs out of the estate have involved a variety of factual situations, they appear to embrace such situations as the following: - 1. The state of the testamentary papers has been such as to leave it doubtful whether an earlier will was revoked by a later (Limas v Goodban (1865) LR 1 P & D 57; Jenner v Ffinch (1879) LR 5 PD 106) or whether an apparently executed will was intended to be testamentary (Thorncroft v Clarke (1862) 2 Sw & Tr 479); 2. The conduct, habits and mode of life of the testator have given the defendant reasonable grounds for questioning the testator's capacity (Davies v Gregory (1873) LR 3 P & D 28; Roe v Nix (1893) P 55, 3. The actions of the testator have given the defendant reasonable grounds for believing that the will was a forgery (Orton v Smith (1873) LR 3 P & D 23); 4. The actions and statements of the testator immediately before, and subsequent to, the making of the will have given the defendant reasonable grounds for believing that the execution of the will had been induced by undue influence (Cousins v Tubb (1891) 65 LT (NS) 716; Shortman v Shortman (1892) LT (NSW) 717).' Finally, Campbell J (as his Honour then was) in Re Estate of the late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311 said: '32 … in the caselaw concerning probate litigation, it can safely be said that a consistent theme in the cases is that the principles concerning costs which are applied to a person who seeks probate (whether successfully or not) are not the same as the principles which apply to the costs of a person who opposes probate (whether successfully or not). In probate litigation, it is not only who succeeds in the litigation which matters - which is the only factor operating in the 'costs follow the event' rule. As well, the role which a particular party has played in litigation, whether as plaintiff or defendant, is relevant. Further, facts about the knowledge available to parties, and the reasonableness of their conduct in conducting the litigation, can be taken into account.' Ultimately, in the light of all of the circumstances of the particular case, I must decide which costs order better achieves justice between the parties."
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: "… Thus it is said that in probate the executor's title as executor is itself "generally in doubt and if he takes the risk of propounding the will, he would be wise to obtain an indemnity from persons beneficially interested, if he is not so interested himself"; Williams, Mortimer and Sunnucks, supra, at 402. Here of course the executor in question was interested herself as, if the will were successfully propounded, she would be the sole beneficiary. However that simply means that the risk, of necessity, falls upon the executor so far as the costs are concerned unless within the exception. Thus an executor is prima facie justified in propounding the will, but is not bound to do so, and if an executor must or ought to have known that he is propounding a document that could not be supported, he will be condemned in costs; see earlier authorities cited and Williams, Mortimer and Sunnucks at 412. Nor is it necessary that a positive finding be made that, for example, the executor has acted improperly, such as by the exercise of undue influence. Rather, it is because executors typically have ample opportunity of observing the behaviour of the testator, in propounding the will, they will be condemned in costs if they are unsuccessful; see Williams, Mortimer and Sunnucks at 413 and the authorities there cited."
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.
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): "Costs in probate actions are at the discretion of the court. It is the general rule in probate actions, as in other actions, that costs follow the event. The notion, sometimes entertained, that the costs of unsuccessful parties will generally be ordered out of the estate in a probate action, is wrong. A large part of this chapter is taken up by a consideration of the exceptions to the rule that costs follow the event. … In the exercise of its discretion on the question of costs, the court must take into account all of the circumstances, including: (a) the conduct of all the parties, including conduct before, as well as during the proceedings and whether it was reasonable for allegations or issues to be raised or pursued, the manner in which allegations or issues were pursued and whether a claim has been exaggerated; (b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and (c) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention and which is not an offer to which costs consequences under CPR Pt 36 apply. … Where the litigation has been caused by the conduct of the testator Where the state of the testator's testamentary papers, the habits and mode of life or (doubtfully) where the testator's own statements have brought about the litigation, costs of unsuccessful parties may be ordered out of the estate. The touchstone is whether it was the testator's own conduct that led to his will 'being surrounded with confusion or uncertainty in law or fact' … The modern trend, however, is for there to be careful scrutiny of any case in which this exception is said to apply, and to narrow, rather than extend the circumstances in which it will be held to be engaged."
As was said over a century ago in Miller's Probate Practice (Maxwell: 1900 Ed.), at 438-439: "Two questions are to be considered with reference to an application for costs of the unsuccessful party: (1) Was there reasonable ground for litigation? (2) Was it conducted bona fide? Where both these questions can be answered in the affirmative it is the usual practice of the Court, without having regard to the amount or the ownership of the property, to order the general costs to be paid out of the personal estate."

[24]

Application for Indemnity Costs

Black CJ, in Re Wilcox; Ex parte Venture Industries (No 2) [1996] FCA 1942; (1996) 72 FCR 151, at 152 and 153, wrote: "... indemnity costs may properly be awarded where there is some special or unusual feature in the case justifying the Court exercising its discretion in that way. See John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 at 203 per Hill J, referring to the judgment of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225. But as Hill J pointed out in John S Hayes (at 203): '... care must be taken not to circumscribe the discretion by reference to closed categories. It is not a necessary condition of the power to award costs that a collateral purpose be shown. The categories warranting the exercise of the discretion are not closed: Colgate-Palmolive at 233; Titijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, 3 May 1991 per French J at p 8; Regata Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court, 5 March 1993) per Davies J at p 6. In each case it will be necessary to look at the particular facts and circumstances to see whether an exercise of discretion to order costs on an indemnity basis is warranted.'"
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]: "The modern approach to the question of awarding indemnity costs is often sourced to the judgment of Holland J in Degmam Pty Ltd (In liq) v Wright (No. 2) [1983] 2 NSWLR 354. In cases where the winning party has acted extravagantly, thus running up unnecessary costs, it may be inappropriate to require the losing party to pay all of the winner's costs. However, the question of indemnity costs will usually arise in circumstances where it is the losing party which has behaved inappropriately. Degmam itself was a case in which the unsuccessful defendant made factual allegations which were 'false and deliberately concocted by her in an attempt to deny the plaintiff its rights and to shift all blame and legal liability ... from herself': at 358. His Honour continued: 'As well as that, she so conducted herself in the proceedings, by multiplying allegation upon allegation, and by prevaricating in the witness box, as grossly to prolong the litigation, thereby to cause the other parties to incur liability for solicitor and client costs far beyond what they could reasonably have expected to incur in litigation of genuine issues.' These principles were applied in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; 81 ALR 397 at 400-401, by Woodward J. His Honour referred to the case where an action had been commenced or continued in circumstances where 'the applicant, properly advised, should have known that he had no chance of success': at 401. His Honour explained: 'In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law.' In later cases it has been emphasised that the circumstances identified in Degmam and Fountain are not to be treated as exhaustive of the cases in which indemnity costs may be awarded: see, eg, J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA Branch) (No. 2) [1993] FCA 42; 46 IR 301 at 303 (French J). It was sufficient, his Honour said, to enliven the discretion to award such costs that 'for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case'. An indemnity costs order will be warranted where proceedings were maintained by a party having 'no reasonable prospect of success': see, eg, Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 (Powell J); Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242 at 273 (Mahoney JA). The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257 (Pullin and Buss JJA, and Newnes AJA) held that an indemnity costs order must be justified by 'some special or unusual feature of the particular case': at [5]. Nevertheless, in declining to make such an order, the Court merely held that the respondent could not be accused of 'having some ulterior motive, or wilfully disregarding the facts or the law': at [7]. In Colgate-Palmolive, Sheppard J sought to elucidate the principles to be derived from the earlier cases: at pp 232-233. Nevertheless, more recent case-law generally shows a tendency to grant indemnity costs orders more readily than was the case in the past. That may be seen to be an element of a broader policy directed to limiting the litigation of cases where there are no reasonable prospects of success: see, eg, Legal Profession Act 2004 (NSW), Part 3.2, Div 10. Such a policy is also reflected in the presumption in favour of an order of indemnity costs where an offer of compromise in accordance with court rules has been made by one party but not accepted by the other and where the offeror has bettered the offer in the litigation. Although the court may otherwise order, the fact that the offeree may be at substantial risk as to an adverse costs order, to be assessed on an indemnity basis, if the offer is bettered, places a significant financial incentive favouring careful consideration of such offers and careful assessment of the benefits of settlement. As appears from the discussion in Commonwealth of Australia v Gretton [2008] NSWCA 117 (Beazley JA, Mason P agreeing) at [48]ff, the test of unreasonableness, applied with respect to the consequences of refusing a Calderbank offer are likely to operate also with respect to other aspects of a party's conduct of litigation: see also Gretton at [117] (Hodgson JA), referring to Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616 (Mason P, Clarke AJA agreeing). While the general rule remains that costs should be assessed on a party and party basis, it is important that the standard to be applied in awarding indemnity costs not be allowed to diminish to the extent that an unsuccessful party will be at risk of an order for costs assessed on an indemnity basis, absent some blameworthy conduct on its part. A test of unreasonableness should not be upheld on other than clear grounds. Nevertheless, the evaluative judgment thus engaged was satisfied by the findings of fact made by the trial judge and not directly challenged on appeal, except on the basis of other grounds referred to above. In those circumstances, the discretionary power to award costs on an indemnity basis was engaged and it was not demonstrated on House v The King principles that the discretion had miscarried."
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]: "Section 56 of the Civil Procedure Act now adds emphasis to occasion to depart from costs on the ordinary basis where failure properly to conduct the proceedings had caused costs to be incurred unnecessarily. But it does not override the need for a rational connection between the reason for departure and the extent of the departure. There may no doubt be cases in which the effect of the misconduct is so pervasive that, in a proper exercise of the general discretion, the higher level of reimbursement can extend to the entire costs of the proceedings. That is perhaps the explanation for Adelaide Congregation Jehovah's Witnesses Inc v Pegasus Leasing Ltd (Olsson J, SASC, 24 December 1996, unreported), where the defence was described as unrealistic and uncompromising as to all issues and leading to a very protracted trial. It is necessary to remember that the trial judge was exercising a discretion, and a discretion in relation to costs as to which this court is particularly cautious in its intervention; a trial judge is in an advantageous position in arriving at the just disposition of costs. However, the trial judge did not express a pervasive effect of the Council's conduct of which he was critical, or say that the Council acted unreasonably in defending at all."
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.
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.
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.

[25]

Indemnity costs on the basis of an Offer of Compromise

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): "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): 'The exercise of the discretion takes account of all of the contextual circumstances of the litigation and the conduct of the parties. One aspect of the award of costs is a recognition that a party has been put to expense which, taking account of the merits as ultimately found on the trial of the action, might otherwise have been avoided. That consideration does not infuse the award of costs with any sense of penalty or punishment but simply recognizes the compensatory nature of an award of costs, in context and according to principle. That is why an award of costs, although involving the exercise of a discretion, generally favours the successful party. As to the importance the community attaches to legal costs incurred of and incidental to the resolution of controversies before courts, see Clark v Commissioner of Taxation [2010] FCA 415 at [90]; Uniline Australia Ltd v S Briggs Pty Ltd (No. 2) [2009] FCA 920; (2009) 82 IPR 56 at [38]; and, Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 at [130] to [132].' I accept, of course, that claims for a family provision order do, in some ways, raise issues with respect to costs that differ from those in other litigation and that there is more flexibility where there has been an unsuccessful claim. One example where an order for costs being made against an unsuccessful Plaintiff may be inappropriate is where, if such an order for costs were made, he or she would immediately become impecunious and so may be able to make a fresh application under the Act. In that example, it would be counter-productive to make an order as to costs against the unsuccessful plaintiff: McCusker v Rutter [2010] NSWCA 318 at [34] (Young JA). … The 'more modern' approach appears to be that stated by the Court of Appeal in Chapple v Wilcox [2014] NSWCA 392. At [27], Basten JA stated: 'Whether or not an unsuccessful applicant should be allowed to litigate without expense to the estate will depend on a variety of circumstances. There is always a discretion in the Court when making an order pursuant to s 98 of the Civil Procedure Act 2005 (NSW). The discretion conferred on the Court by that provision is subject to the rules of court (s 98(1)) and thus to r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), which provides that costs will follow the event unless it appears to the Court that some other order should be made. That rule is not disapplied in relation to family provision orders. Nor should applicants for such orders have any expectation that, as a general rule, the discretion will be applied so as to exempt them from liability for costs incurred by an estate in the case of an unsuccessful application. In some cases applicants will already be beneficiaries of the estate and may thus have some incentive to ensure that the costs of litigation are kept within tight bounds. However, that is not always the case. Where an applicant is entirely unsuccessful, an order that he or she should pay the costs of the estate may well be the appropriate order.'"
I added, at [43]-[44]: "From the authorities, it appears the question for determination regarding the effect of what is said to be an Offer of Compromise involves a two-stage process. The first stage is to enquire whether the offer made is an 'Offer of Compromise' at all, within the meaning of the UCPR. This will depend, in part, on whether it satisfies the formal requirements laid down by UCPR rule 20.26. It also depends, in part, on whether the offer made is one that can truly be called a 'compromise'. If the court concludes that the offer which is made is an 'Offer of Compromise' within the meaning of the Rules, and that the offer made is one that can truly be called a compromise, then UCPR rule 42.15A(2) operates to establish a 'default' position, relevantly that, if the defendant obtains a judgment no less favourable than that which the defendant had offered to accept, then indemnity costs would follow. It is then that the second stage of the process arises, in that the court can "otherwise order". The court will 'otherwise order' if it is persuaded that is appropriate, in the interests of justice, that the 'default' position ought not apply: Manly Council v Bryne (No 2) [2004] NSWCA 227, per Campbell JA, at [10]; Evans v Braddock (No 2) [2015] NSWSC 518, at [52]."
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".
Slattery J also wrote, at [25], that: "…to assess the reasonableness of… non-acceptance of [an] Offer, the Court must evaluate what was disclosed in the material in the proceedings at the time of service of the Offer: Castro v Hillery [2003] 1 Qd R 651 ("Castro"), (at [72]); [2002] QCA 359. This assessment of reasonableness must be made without the benefit of hindsight: Miwa, (at [11])."
In Rogers v Rogers [2018] NSWSC 1982 , I wrote, in relation to Offers of Compromise, at [314]: "In circumstances where a proper offer of compromise has been made, but not accepted, and that party has obtained a judgment no less favourable than the terms of the offer, there is a clear onus on the other party to persuade the Court that indemnity costs should not be ordered."
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]: "Taking into account the language of r 42.15A, a party seeking to persuade the Court to order otherwise must identify some feature or features of one or more of the proceedings, the claim, the offer (including, for example, when it was made) and the order or judgment obtained by the successful party which provide a rational basis for the Court to displace what the rule specifies is the costs order to which 'the defendant is entitled'. (An appeal from the substantive judgment of Kunc J was dismissed in Bates v Cooke (2015) 14 ASTLR 22; [2015] NSWCA 278. Nothing was written by the Court of Appeal about the costs judgment.)"
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: "… underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs."
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].
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].
Finally, I refer to what was recently written by Leeming JA in Nadilo v Souris (No 2) [2019] NSWSC 246, at [24]: "…The purpose of the rule is to encourage the making of offers of compromise and to oblige the offeree to give serious thought to the risk involved in non-acceptance: see Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724. It is not enough to show that the defendant acted reasonably in not accepting an offer: see, for example, Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 at [48]."

[26]

Costs in Family Provision Proceedings

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.
In Harkness v Harkness (No 2) [2012] NSWSC 35 at [17]-[18], I wrote: "I have identified, in a number of other cases in which a family provision order has been sought (see, for example, Smith v Smith (No 2) [2011] NSWSC 1105, Mikan v Velcic (No 2) [2011] NSWSC 505), after referring to the legislation, which I have again set out above, the general principles I considered relevant. For the assistance of the parties and others reading this judgment, I repeat the principles stated previously which I consider relevant to the present case: (a) In Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521, Gaudron J, said, at 522: 'Family provision cases stand apart from cases in which costs follow the event. Leaving aside cases under the Act which, in s.33, makes special provision in that regard, costs in family provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant's financial position. And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate.' (b) Despite the above statement, which, of course, was written in the context of a security for costs application, and in respect of proceedings under the Family Provision Act, s 99 of the Succession Act provides a wide discretion in relation to costs ('in such manner as the Court thinks fit'). (c) The view of some practitioners advising a potential applicant contemplating a claim for a family provision order, that there is little risk, and probably much to be gained, in making a claim, however tenuous, because even if the claim fails the applicant will, very likely, get his, or her, costs out of the estate and that he, or she, will not be significantly out of pocket, and the legal practitioner will receive his, or her, costs and disbursements in any event, has been thoroughly discredited. (d) Parties should not assume that this type of litigation can be pursued, safe in the belief that costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) [2010] VSCA 195. It is now much more common than it previously was for an unsuccessful applicant to be ordered to pay the defendant's costs of the proceedings (Lillis v Lillis [2010] NSWSC 359 at [23]) and be disallowed his, or her, own costs. (e) Where, as here, the issue is whether the unsuccessful applicant should bear the costs of the successful Defendant, s 98 of the Civil Procedure Act, and the rules quoted above, will apply, and, in the absence of some good reason to the contrary, there should be an order that the costs of the successful defendant be paid by the unsuccessful plaintiff: Moussa v Moussa [2006] NSWSC 509 at [5]. (f) An unsuccessful plaintiff will, usually, be ordered to pay costs where the claim was frivolous, vexatious, made with no reasonable prospects of success, or where she, or he, has been guilty of some improper conduct in the course of the proceedings: Re Sitch (No 2) [2005] VSC 383. (g) In small estates particularly, the court should be careful not to foster the proposition that obstinacy and unreasonableness will not result in an order for costs: Dobb v Hacket (1993) 10 WAR 532, at 540. (h) Proceedings for a family provision order involve elements of judgment and discretion beyond those at work in most inter partes litigation: Jvancich v Kennedy (No 2) [2004] NSWCA 397; Re Sherborne Estate (No 2); Vanvalen v Neaves [2005] NSWSC 1003. (i) In exercising its discretion in relation to costs, the court will have regard to 'the overall justice of the case': Jvancich v Kennedy (No 2). The 'overall justice of the case' is 'not remote from costs following the event'. However, the court may be more willing to depart from the general principle in proceedings for a family provision order than in other types of case: Moussa v Moussa; Carey v Robson (No 2); Bartkus v Bartkus [2010] NSWSC 889 at [24]. (j) As proceedings for a family provision order are essentially for maintenance, a court may properly decide to make no order for costs, even though it were otherwise justified, against an unsuccessful applicant, if it would adversely affect the financial position which had been taken into account in dismissing the application: Morse v Morse (No 2) [2003] TASSC 145; McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484; McCusker v Rutter [2010] NSWCA 318 at [34]. (k) There are also other circumstances that may lead the court to order payment out of the estate of the costs of an unsuccessful Plaintiff. The court may allow an unsuccessful plaintiff costs out of the estate, if in all the circumstances the case was meritorious, reasonable or 'borderline': McDougall v Rogers; Estate of James Rogers; Re Bodman [1972] Qd R 281; Shearer v The Public Trustee (NSWSC, Young J, 21 April 1998, unreported)."
In Bruce v Greentree (No 2) [2015] NSWSC 1636 at [43], I wrote: "In addition to the above principles, I should note that the usual costs rule in an unsuccessful family provision application 'reflects the policy embodied in s 56 Civil Procedure Act that litigation must be conducted responsibly and should only be commenced by a plaintiff after careful evaluation of the costs consequences likely to attend to failure': Carey v Robson; Nicolls v Robson (No 2) [2009] NSWSC 1199, per Palmer J, at [20], and that '[t]here is a public policy in the usual practice as well as the element of justice reflected in the rule that costs follow the event': Friend v Brien (No 2) [2014] NSWSC 614, per White J, at [20]."
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].

[27]

Summary of Findings

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.)
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.
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.)
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.
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).
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.
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.
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.
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.
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.
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.
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).
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.
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.)
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.

[28]

Determination

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.
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.
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.
These features include: 1. Michael had prepared the 2015 Will in which he was the only beneficiary; there was a question which required some investigation concerning the 2015 Will and the deceased's knowledge and approval of it. 2. This was not a case in which issues were ever raised about the testamentary capacity of the deceased. 3. There was no complaint made, by the deceased, about the improper conduct of Michael in relation to the preparation, or drafting, of the 2015 Will; nor was there any suggestion made, to any of the Defendants, or otherwise, that the deceased wished to change the 2015 Will. 4. The deceased did not inform any of her children, after the 2015 Will was executed, that she wished to change that Will, or that her intentions were other than as stated in that Will. 5. There was available to each of the Defendants, a document, signed by the deceased, which demonstrated the deceased's knowledge and approval of the contents of the 2015 Will. Even though there was reason to believe that Michael had drafted part of that document, the deceased had signed a Statutory Declaration which referred to a Will having been made by her. 6. The deceased disclosed to Nicholas, shortly after she made the 2015 Will, the terms of that Will. She refused his suggestion for legal assistance. She did not seem to accept his criticism of the terms of the Will in relation to Michael. 7. Nicholas informed Julian and Dominic of his conversation with the deceased a short time after the deceased's death, and before the commencement of the Probate proceedings. This is not a case where the terms of that conversation became known at the hearing (even though the affidavit by Nicholas was served a relatively short time before the hearing). 8. Each of Julian, Dominic, and Nicholas, reasonably anticipated the nature of the evidence, and the powerful effect that it might have, in relation to any Probate proceedings. It is reasonably clear that each appreciated that the conversation was likely to be an important factor in determining the question of the validity of the 2015 Will. 9. By expressly confirming the contents of her Will, the litigation had not been caused, or contributed to, by the way in which the deceased had made her testamentary intentions known. (She was under no obligation to discuss the terms of the 2015 Will with all of her children. In any event, she did so with one of them.) 10. Dominic knew that the deceased made a Will dealing with her Malaysian property. 11. The medical evidence did not establish that the deceased was unable to understand the simple terms of the 2015 Will or to explain its terms to Nicholas. 12. There was no evidence of undue influence by Michael, either in the Probate, or in the equity, sense. 13. A number of witnesses, who might have been called, including Mr Byrne, did not give evidence in the Probate proceedings. 14. The nature of the contentions of all of the Defendants was, until Nicholas decided to no longer engage in the Probate litigation, not unlike any other hostile litigation; the Defendants, other than Mr Byrne, were seeking to advance their own interests. Then, it was Julian, Dominic and Denise who continued the Probate proceedings and the Equity proceedings. 15. This is not a case in which the Court was required to investigate the validity of the 2015 Will in the detail in which it was required by the Defendants to be investigated both before, and at, the hearing. 16. Michael, as the sole beneficiary, would have to bear the significant costs of a contested Probate and equity hearing, and suffer the depletion of the estate in a case in which the ultimate result of litigation ought to have been reasonably clear to the Defendants. 17. In substance, the Defendants "acted on their subjective belief, rather than on the objective evidence, which is not a proper or reasonable basis to seek to propound a testamentary document" (in this case the 2007 Will whilst asserting that the 2015 Will was invalid): Re Mangan [2016] VSC 480, per McMillan J, at [17]. 18. Whilst it is true that the amount offered in the Offer of Compromise, to the individual Defendants, as beneficiaries named in the 2007 Will, was a very small proportion of the gross value of the deceased's estate, it is necessary to take account of the offer with respect to costs. The estate was to bear their costs of the proceedings, calculated on the indemnity basis. Although the quantum of their costs, at that time, is not the subject of evidence, it would have been a significant financial benefit to them to not have to pay costs, and not an insignificant diminution in the value of the estate, which Michael would receive by the payment of those costs, as well as his own. As importantly, the offer did not include a term that would have prevented each of the beneficiaries from making a claim for a family provision order, as each of them subsequently did. In my view, the Offer of Compromise did involve a real element of compromise. It was not a "walk away offer". 19. There were a number of aspects of the evidence of Julian and Dominic that were not accepted as truthful. 20. The behaviour of Julian and Dominic throughout the proceedings provides no reason for making an "otherwise order".
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.
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.
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.
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.
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.
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).
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.
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]: "It is difficult to assess the proportions in which the parties' costs are attributable to the various categories. It is tempting to remit any dispute to an assessor, and exercise the discretion as to costs on an issues basis. However, these parties have a proven capacity to litigate all issues, including those which are very small (as the applications presently being resolved well illustrate). It is appropriate to make a costs order on a broad brush approach, in order to spare both parties additional costs: see Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [18]-[19]."
(I substitute "proceedings" for "categories" in the second line.)
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.)
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.
In relation to Nicholas, Michael, by his counsel in their written submissions, sought that: "Nicholas should be ordered to pay Michael's costs of the probate proceedings on the indemnity basis, up to and including 11 February 2018. Although this date is some weeks prior to the filing of a submitting appearance, Nicholas should not be penalised for any delay in filing the appearance with the Registry when all parties proceeded, from at least 11 February 2018, on the footing that Nicholas no longer wished to continue with the challenge made by his siblings and Mr Byrne to the 2015 will."
(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.
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.
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.
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.
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.
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.
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.
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.
In the circumstances, the Court:

[41]

29 August 2016 "5:00 p.m. - dblendell33: Still not sure why we aren't trying to push the 1.Stockholm / not of sound mind angle and 2. The apparent unprecedented angle of him rewriting, being executor and sole beneficiary of a once previously equally allocated will based on ridiculous reasons from him which he has all but rebutted in his Web of email lies? 5:06 p.m. - Julian Blendell: Stockholming and not of sound mind. Probably near impossible to prove. And if your honest, you cannot be sure of that yourself. It is an assumption. Weakened physical and emotional capacity...yes. the uncomfortable paragraph is to demonstrate we are not fucking around and that we have dirt on him that he will have not idea we have such as mums emails to you motors, her emails to him calling him a shit father etc. 5:07 p.m. - dblendell33: Ok fair enough. What about my point 2? 5:07 p.m. - dblendell33: The mediation offer weakens our position don't you think 5:08 p.m. - dblendell33: And for the record I'm pretty sure she was fucked up around that time cause she was hear shortly afterwards and was a mess. And the Stockholm (whilst hard to prove) i am adamant on. Especially when she ended up in tears when Nicholas raised the new will with her and she didn't want to talk about it. 5:15 p.m. - Julian Blendell: The paragraph where it talos about him drafting the will, he will have to satisfy the judge that this is what noel rewlly wanted given it is a complete backflip on previous will and that yours and pickle relationship started to breakdown supposedly when you have loving emails from her. The fact she did it to protect from predators yet he poses the greatest risk of that with the flippers 5:27 p.m. - Julian Blendell: The par re mediation only says that you would consider it, not that you would definitely do it. Jo 5:32 p.m. - dblendell33: Ok. But I am against this as I think it weakens position. Or at the least raise this point to Christine and see what she says. Happy to take the majority rule on it or if she feels strongly on saying it 5:33 p.m. - dblendell33: Also, she says "the deceased knowledge and contents of the will is in serious doubt however" 5:34 p.m. - dblendell33: That's not true at all. She knew of the will and signed it. 5:35 p.m. - dblendell33: Added to boot likely in front of mark and annabel so not sure why raising that point is relevant"

[44]

10 April 2017 "8:30 a.m. - Nick Blendell: Christine wants to pull my affadavit and not include it 10:13 a.m. - dblendell33: Why 10:21 a.m. - Nick Blendell: Risky because I knew about the will 10:58 - Nick Blendell: Should we just put in an offer that we recover cost plus 50k each, seems we are in abit of trouble in this case and finish it 11:28 a.m. - dblendell33: He hasn't mentioned that in his affidavit. So he clearly doesn't know about it 11:31 a.m. - dblendell33: They will smell a rat the minute there is nothing submitted from you 11:31 a.m. - Nick Blendell: She's thinking of pulling Denise's as well 11:31 a.m. - dblendell33: Why 11:32 a.m. - Nick Blendell: Doesn't want her on the stand 11:33 a.m. - Nick Blendell: Portray it like Jules was the spokesman and most contact was through him and you have all the Malaysian property shot 11:33 a.m. - Nick Blendell: Like she says we don't have a smoking gun here 11:a.m. - Nick Blendell: I don't think we can run and hide from this none of us had any clue about the will change, I knew, I advised you, whether it registered or not , she knowingly changed the will, that's not up for debate , but she changed it under mjs influence based on some sort of understanding steps would happen which mj has not disclosed then made it like she cut us out 11:41 a.m. - dblendell33: So that remains as undue influence then 11:42 a.m. - dblendell33: And above all his story full of proveable holes 11:45 a.m. - Nick Blendell: There are but really at the end of the day we can't prove there was a plan, mj has destroyed all evidence of that I'm picking , 11:47 a.m. - dblendell33: If there's evidence destroyed then it can only be on email. Hence why maybe there's a complete lack of emails over that particular period. Which can be pointed out and subpoenad to yahoo if necessary 11:47 a.m. - Nick Blendell: Yeah they don't have to comply with that and won't 11:47 a.m. - Nick Blendell: Unless police, federal matter 11:48 a.m. - dblendell33: And who told you that 11:48 a.m. - Nick Blendell: Christine, 11:48 a.m. - Nick Blendell: Not ausSie based, they won't open themselves up to millions of these type of things, could you imagine the cost 1:52 p.m. - Nick Blendell: If you look at the definition of undue influence "when the deceased is coerced into something they did not want to do, the influence needs to be such that it overbore the free will of the deceased" I'm not sure this is the case if she did based on thinking Michael would do something on his end, our only case is that he hasn't carried that out which could be fraud … 9:49 p.m. - Nick Blendell: I put all of that up in this chat room 9:50 p.m. - Nick Blendell: You both knew that I knew about the will and advised Dom and I'm pretty sure I told her that ages ago 9:53 p.m. - Nick Blendell: Sounds to me like she's covering her ass 9:54 p.m. - Nick Blendell: And really all this detail should have been flushed out months ago, 9:56 p.m. - dblendell33: You mentioned about the Will at the begining. But you've been totally lackadaisical about checking evidence and providing it in a timely fashion so her hands have been tied 9:57 p.m. - dblendell33: Everything you had on WhatsApp has been there for 10 months 9:58 p.m. - Nick Blendell: I've posted just about everything on whatsapp in this post, most Julian has forwarded to her, not going through it now but will tomorrow 9:59 p.m. - Nick Blendell: Prob when Julian said he handles all contact 9:59 p.m. - Nick Blendell: And I told you both I knew about the will advised Dominic on whatsapp 10:00 p.m. - dblendell33: Nobody is questioning that 10:01 p.m. - Nick Blendell: I do notice the confidence of winning this case is not what it was,"

[45]

12 April 2017 "10:11 a.m. - Julian Blendell: Denise is ok with the proposed settlement offer. She has been advised our chances have somewhat diminished. Of course i got the lorry load of texts thereafter. 10:12 a.m. - Nick Blendell: What logic are you saying our chances have somewhat diminished. 10:15 a.m. - Julian Blendell: Christine surely has explained this to you. The fact mum told you she changed the will and yet did nothing to undo that change could be interpreted that she knew and approved it. And we can't bury that you know of the will change cause you told mj. And i have zero recollection of you telling me her changing of the will pre her passing but you told mj motors and i both knew. 10:25 a.m. - dblendell33: But MJ hasn't raised this at all correct? 10:26 a.m. - Nick Blendell: But we knew this at the beginning mum told me , I can't remember if I informed you but def Dominic, why did mj not mention that in his affidavit had this been such a massive smoking gun wouldn't a smart lawyer like Ellison had have seen that straight away? 10:27 a.m. - dblendell33: Because he's either deleted the WhatsApp or he forgot 10:28 a.m. - dblendell33: This would have been raised immediately did they have it 10:28 a.m. - Nick Blendell: Forgot surely the first thing his lawyer would have said is what is the correspondence between you and kids 10:29 a.m. - dblendell33: Maybe he deleted all the Whatsapps with us in the early days of the feud not thinking anything of it. 10:29 a.m. - dblendell33: As I did 10:29 a.m. - Nick Blendell: Either way our case is that he deceptively got her to sign 10:30 a.m. - Nick Blendell: And then made up a bunch of crap as to the reasons when he got his hand in the cookie jar 10:30 a.m. - Nick Blendell: It's a really tough one … 10:34 a.m. - Nick Blendell: It's all irrelevant all that even the Aubrey/ aurora stuff is pretty irrelevant , we need to prove he has no intention on carrying out her wishes and we can't really, doubt there would have been anything much in writing anyway, all we have is the testimony of 2 guys accused of murder 11:13 a.m. - Nick Blendell: So where to from now 11:29 in the morning - dblendell33: I've just been sent my affidavit to make amendments 11:30 a.m. - Nick Blendell: I haven't so prob not going with mine 11:33 a.m. - Julian Blendell: Your affidavit is not going to be submitted. Sean says that the conversation you had with mum where she says there are specific instructions is of no use unless these instructions were documented by her. Denise's affidavit is to go in with ours. Then we make an offer. And the offer is more close to be a 5 way split of aussie assets and we ignore malaysian property (have the option of ligating that over there but i am certainly not interested in putting in anymore money or emotional energy). If it goes to trial it is going to get very expense so sean is recommending to end it through settlement. 11:36 a.m. - Nick Blendell: What about Matt Byrne? 11:52 in the morning - dblendell33: Isn't it a red flag if Nicholas doesn't submit an affidavit 11:53 a.m. - dblendell33: I would have thought the fact he has it on email that she wanted to talk to a lawyer shows that she didn't want to do some slap bang bedside job by Prince George 11:54 a.m. - Julian Blendell: Sean thinks not. Not everybody has to. It is not unusual. Nick could essentially have nothing to add to what yours and mine says so why waste time and money doubling up 11:57 a.m. - dblendell33: And in him not submitting an affidavit means he doesn't have to go on witness stand even though he's a plaintiff? 11:58 a.m. - Julian Blendell: Unless he gets subpoenaed which again sean thinks unlikely as the other side has no idea what he might reveal. Everything is speculation but he is in the better position to know than us and Christine 12:01 p.m. - Nick Blendell: Maybe mum just wanted me cut out because of alcohol and drug abuse problems and this was a weird way to get there 12:12 p.m. - dblendell33: Hope Denise doesn't know about nics affidavit not being submitted. She will blab to everybody in town and will get back to mj 1:08 p.m. - Nick Blendell: Blab what mj is going to know I haven't put in an affidavit. …"

[47]

2 May 2017 "10:53 a.m. - Julian Blendell: Any closer to a firm decision re family provisions claim for 6ou boys? 10:53 a.m. - Julian Blendell: You 10:54 a.m. - Nick Blendell: Seems like Denise is frothing cause she's been told she'll get a fair chunk 10:54 a.m. - Julian Blendell: She is a certainty 10:55 a.m. - Nick Blendell: I have no idea, we don't need to lodge for a while, going to speak to another lawyer next week 10:57 a.m. - Julian Blendell: So what is it hinging on for you. From what we have been told it is guaranteed you will get a payout and costs to come from the estate. 10:57 a.m. - Nick Blendell: Why is it guaranteed ? 10:59 a.m. - Nick Blendell: Is it guaranteed you will get one ? 11:06 a.m. - Julian Blendell: As good as guaranteed. Obviously the more needy someone is the more the denises of this world can command. But she will get less than what she thinks… … 12:17 p.m. - Julian Blendell: Yes unless you go to a no win no fee layer which denise alreay has. Only big firms do this. She has gone to maurice blackburn who are huge. They already contacted christine so she wasted no time as expected. Had a long convo with christine about my motivation for a family provisions case. You can lodge it and pull out so we have time to decide 12:21 p.m. - dblendell33: And what stuff do you have to provide. No doubt all your financials. Which will be a major pain for me with various business share ownership documents in malay 12:21 p.m. - Julian Blendell: Yes 12:22 p.m. - dblendell33: It's worth lodging regardless to bombard him. Even if you pull out. Might make him go into mediation 12:22 p.m. - dblendell33: Or a reasonable offer 12:23 p.m. - Julian Blendell: She says if we all lodge it will really put him under the pump as he will then have 5 cases against him with a shitload of legal fees to boot 12:24 p.m. - dblendell33: Matlock Blendell calls it again 12:33 p.m. - Nick Blendell: Surely if you went for the funding it out of the estate ambulance chaser option you would have penalty if you pulled out 12:35 p.m. - dblendell33: Exactly 12:36 p.m. - Nick Blendell: Still think if Mj had those whatsapp msgs or told his lawyer I knew about the will would have been in his affidavit front and centre, his low ball offer would have made sense then 12:40 p.m. - dblendell33: He's forgotten. Still doesn't clear it of being suspicious circumstances or undue influence. 12:45 p.m. - Nick Blendell: Or the defence doesn't see it as a massive smoking. Gun which diminishes ur chances to nil 12:46 p.m. - Nick Blendell: Our 12:58 p.m. - dblendell33: If he puts in his affidavit about fucking bbqed sausages, there is just no way if he remembered that info he wouldn't have put it in. With or without the WhatsApp" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2019

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