Guamani v Guamani (No 2)

File Number(s): 2022/346362

Publication restriction: Nil

JUDGMENT

Summary

1. The Court delivered its principal judgment in these proceedings on 4 February 2026: Guamani v Guamani [2026] NSWSC 14. These reasons should be read, and assume familiarity, with the principal judgment. Defined terms in the principal judgment have the same meaning in these reasons.

2. On delivery of the principal judgment, the Court gave the parties an opportunity to agree upon orders to give effect to the Court’s reasons. They were substantially able to reach agreement on all matters other than costs. The Court received detailed written submissions in relation to the form of orders, including costs, from each of Ms P Muscat of Counsel, who appeared for the plaintiffs, and Ms A Power of Counsel, who appeared for Luz.

3. The Court made the orders set out in [18] below on 20 February 2026. On that occasion, neither Ms Muscat nor Ms Power wished to be heard further on the matters advanced in their respective written submissions. NSWTAG also appeared by a solicitor on that occasion, but was excused because there was no dispute about the costs order to be made in favour of NSWTAG.

4. These are the reasons as to why the Court made the costs orders that appear in [18] below.

Consideration

5. There was some complexity in the form of costs orders propounded by each of the parties. That is not said as a criticism. It is because the parties approached the question of costs by differentiating between the issues in the proceedings: probate, the informal document and family provision.

6. The plaintiffs’ submissions sought to assign 30 percent of the costs of the proceedings to family provision, 60 percent to probate and 10 percent to the informal document. Luz’s submissions sought to assign 40 percent of the costs to family provision and 60 percent encompassing both probate and the informal document. There was a difference between the parties as to what extent some of those proportions should be paid from the estate and what should be met by the parties personally.

7. Two particular issues were:

8. the effect (if any) of a Calderbank offer sent on behalf of the plaintiffs to Luz’s solicitors on 24 May 2024, which was open for acceptance until 21 June 2024; and

9. whether what are sometimes referred to as the probate costs exceptions applied to the present case.

10. It is convenient first to deal with whether or not the offer should have any impact on the exercise of the Court’s discretion as to costs. The offer was not without its complexity, which was understandable given the permutation of outcomes available depending on how the various issues in the case were determined. Nevertheless, it is sufficient for present purposes for me to assume in the plaintiffs’ favour that they have obtained a judgment which is no less favourable than the terms of the offer. There is no doubt that the offer was a genuine compromise and that it was open for a reasonable time.

11. Ms Muscat’s submissions correctly accepted that the offer was not determinative but may be a factor, albeit in her submission a strong factor, to be taken into account in the award of costs to the plaintiffs. However, an important consideration is whether the nature of the case, and hence the forensic landscape in which Luz made her choice not to accept the offer, was substantially the same at the time of the offer as it ultimately was at the time of the hearing which gave rise to the principal judgment.

12. The Court accepts Ms Power’s submissions that there are two reasons why the forensic landscape by the time of the hearing was materially different such that the offer should not be taken into account in the exercise of the Court’s costs discretion. Those two reasons were:

13. At the time of the offer, Luz’s legal representative had not yet been granted access to the approximately 2,000 pages of Washington’s medical records produced on subpoena by the RPA Hospital. These ultimately played a significant role in the Court’s assessment of the facts, including the assessment of those facts leading to conclusions that were adverse to Luz; and

14. Luz was relying on the detailed affidavit evidence of Mr Whiley, which at the time appeared to be evidence of his actual recollection of what occurred. As I recorded in [142] the principal judgment, it became apparent as a result of his cross-examination that Mr Whiley had no actual recollection of conversations or details of events to which he deposed over and above the matters recorded in his handwritten note and file notes. His evidence was therefore of considerably less weight than it might reasonably have been thought to carry at the time the offer was under consideration.

15. For her part, Luz sought to ameliorate the extent to which she might be ordered to pay costs personally by referring to what are sometimes called general rules or exceptions in probate litigation: see, in particular, the oft-cited judgment of Powell J (as his Honour then was) in Re Hodges*; Shorter v Hodges* (1988) 14 NSWLR 698 (at 709-710). These were to the effect that Luz had a reasonable and bona fide belief in the validity of the 2021 will (in particular having regard to the evidence of Dr Buss and Mr Whiley) such that she should be entitled to her costs from the estate, or alternatively, that the circumstances of the execution of the 2021 will and the informal will led reasonably to an investigation of the documents such that the parties should bear their own costs of the probate aspects of the matter.

16. Quite properly, Ms Power did not submit that the matters in Hodges had the status of rules. Nevertheless, it is worth recalling that they are no such thing. They are no more than an example of the exercise of the Court’s costs discretion in certain identified circumstances. In this case, the approach which Luz took to the litigation does not bear a character which could be reflected in the application of either of the principles to which Ms Power referred.

17. The Court accepts Ms Muscat’s submission that Luz was at all times conducting the litigation in furtherance of her own personal interest. That characterisation is fortified when it is recalled that she procured the 2021 will, was the primary beneficiary, with gifts over to her adult children (being persons to whom Washington had no testamentary obligation), and was the person through whom instructions for the 2021 will were primarily given. The Court is well satisfied that this is a case where an executor’s or trustee’s usual right to indemnity for costs from the trust fund should not apply (see UCPR Part 42 Rule 42.25(2)(b)).

18. Having disposed of the particular matters raised by each of the parties, the overall disposition of costs becomes straightforward.

19. It is appropriate to separate family provision from probate. In relation to family provision, the Court does not accept Ms Power’s submission that her client’s claim for provision was “vigorously” opposed by the plaintiffs. By the time of the hearing, the plaintiffs accepted that an extension of time to commence the proceedings should be granted to Luz, and that the 2018 will, if admitted to probate, made inadequate provision for her. This meant that the only matter in issue was the amount of further provision (see [4](3)] of the principal judgment).

20. Luz was successful in her family provision claim. My overall impression of the proceedings is that an allocation of 30 percent of the parties’ total costs of the proceedings to family provision is appropriate. The familiar outcome in family provision proceedings as to costs should apply, such that Luz should have 30 percent of her costs out of the estate on the ordinary basis and the plaintiffs (as defenders of the 2018 will) should have 30 percent of their costs of the proceedings out of the estate on the indemnity basis.

21. Turning to probate, consistently with the view I have expressed in [13] above, the proceedings were conducted as inter partes litigation. On this aspect of the proceedings, the plaintiffs had complete success and, having dealt with the matters set out in [7] to [13] above, there is no reason why costs should not follow the event such that Luz should pay the remaining 70 percent of the plaintiffs’ costs of the proceedings on the ordinary basis. This will be ordered to be paid from Luz’s share of the estate. There will be no order as to Luz’s costs of the probate aspect, with the intention that she pay those costs herself.

Conclusion

18. The orders of the Court were:

19. Orders that the Will of the late Washington Manuel Guamani (the deceased) dated 16 November 2018 (the Will) be admitted to Probate.

20. Orders, subject to compliance with the Probate Rules and Rules of Court, that Probate issue in solemn form to the Second Defendant, the executor named therein.

21. Orders that the matter be remitted to the Registrar in Probate to complete the grant.

22. Orders, pursuant to s 58 of the Succession Act 2006 (NSW) (the Act), with the consent of the parties, that the time for the making of the First Defendant’s application for further provision out of the estate of deceased, be extended to 21 November 2022, the date of the filing of the First Defendant’s Cross-Claim.

23. Order, pursuant to section 59(2) of the Act, that in lieu of the gifts made to the Plaintiffs and the First Defendant under the Will, after payment of all the debts and testamentary expenses of the deceased’s estate, the residue of the deceased’s estate (residue) be applied as follows:

(a) Subject to order 5(b) below, the residue be divided equally between each of the Plaintiffs; (b) The greater of $780,000 or that amount which is two-thirds of the residue be paid to the First Defendant, subject to the First Defendant satisfying the following conditions no later than 30 April 2026 (or such other date as the Plaintiffs may agree):

(i) Taking all steps to amend the deceased’s death certificate to remove the references in it to the First Defendant’s sons Wendell Philips Choquehuamani Baca Flor and Christopher Chryoff Choquehuamani Baca; (ii) Lodging a notarised copy of the amended death certificate with the Ecuadorean Embassy in Australia; and (iii) Waiving and releasing in writing any right she may have to claim an interest in any real or personal property of the deceased in Ecuador to the intent that such property be dealt with in accordance with the law of Ecuador (including any will made by the deceased in Ecuador).

6. Orders that the Statement of Claim filed 16 November 2022 otherwise be dismissed.
7. Orders that the Amended Statement of Cross-Claim filed 10 October 2023 otherwise be dismissed.
8. Orders that the Plaintiffs’ costs of the Probate proceedings (being the validity of the 2021 Will and the informal will) (being 70% of the overall costs of the proceedings), calculated on the ordinary basis, as agreed or assessed, be paid from the First Defendant’s share of the deceased’s estate.
9. Makes no order as to the First Defendant’s costs of the Probate proceedings (being 70% of the overall costs of the proceedings), with the intention that the First Defendant bears her own costs of the Probate proceedings.
10. Orders that the Plaintiffs’ costs of the Family Provision proceedings (being 30% of the overall costs of the proceedings), calculated on the indemnity basis, be paid out of the deceased’s estate.
11. Orders that the First Defendant’s costs of the Family Provision proceedings (being 30% of the overall costs of the proceedings), calculated on the ordinary basis, as agreed or assessed, be paid out of the deceased’s estate.
12. Orders that the Second Defendant’s costs of the proceedings be paid out of the deceased’s estate on the indemnity basis, in the fixed and agreed sum of $14,300.
13. Grant liberty to any party to apply on 3 days’ notice.

**********