//
[2025] ACTSC 460
General information, not legal advice.
Supreme Court of the ACT
2025-10-15
Mossop J
Original judgment source is linked above.
Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Saeedi v Pastrello (No 2) Citation: [2025] ACTSC 460 Hearing Date: On the papers Decision Date: 15 October 2025 Before: Mossop J Decision: (1) The costs of the first plaintiff are to be paid out of the estate on an indemnity basis. (2) The costs of the second, third, and fourth plaintiffs are to be paid out of the estate on a party and party basis up to 7 December 2023 and on a solicitor and client basis thereafter. (3) The costs of the defendants are to be paid out of the estate on a party and party basis. Catchwords: PRACTICE AND PROCEDURE – COSTS – Costs in probate matters – where first plaintiff (executor of new will) ceased to play active role in proceedings – where certain defendants (who propounded the new will) became plaintiffs and stepped into the role that the executor would have otherwise performed – where conduct of remaining defendants challenging the new will had a proper and reasonable basis, but was motivated, at least in part, by their own financial interests – costs orders made in favour of all parties payable out of the estate Cases Cited: Elders Trustee & Executor Co Ltd v Eastoe [1963] WAR 36 In the Estate of Edna Ann Levy [2018] ACTSC 150 Saeedi v Pastrello [2025] ACTSC 26 Parties: Kamyar Saeedi (in his capacity as executor of the estate of the late Lorenzo Pastrello) (First Plaintiff) Carl Lorenzo Pastrello (Second Plaintiff) Christian Ivan Pastrello (Third Plaintiff) Massimo Max Eddy Pastrello (Fourth Plaintiff) Luisa Sonia Pastrello (First Defendant) Eddy Louis Pastrello (Second Defendant) Representation: Counsel WDB Buckland (First Plaintiff) K Binstock (First and Second Defendants) Solicitors Kamy Saeedi Law (First Plaintiff) KJB Law (Second, Third and Fourth Plaintiffs) Thomson Geer (First and Second Defendants) File Number: SC 286 of 2022 MOSSOP J: Introduction
These reasons relate to the costs orders that should be made consequent upon the judgment delivered on 12 February 2025: Saeedi v Pastrello [2025] ACTSC 26. In these reasons, I have referred to the parties by their names in the same manner that I did in the primary judgment.
Following the delivery of judgment on 12 February 2025, directions were made for the filing of written submissions in relation to costs. The first plaintiff (the executor, Mr Saeedi) and the defendants (Luisa and Eddy) filed submissions on costs. The second, third and fourth plaintiffs (Carl, Christian and Massimo) did not file any submissions on costs. There was little difference between the positions adopted by the executor and Luisa and Eddy.
Submissions
The executor contended that: (a) his costs should be paid out of the estate on an indemnity basis; (b) the costs of Carl, Christian and Massimo should be paid out of the estate on a party and party basis up to 7 December 2023 and on a solicitor and client basis thereafter; and (c) the costs of Luisa and Eddy should be paid out of the estate on a party and party basis.
Luisa and Eddy agreed that the executor’s costs should be paid out of the estate on an indemnity basis. They contended, however, that the estate should pay: (a) Carl, Christian and Massimo’s costs on a solicitor and client basis for the whole of the proceedings; and (b) Luisa and Eddy’s costs on a solicitor and client basis, rather than on a party and party basis.
There are therefore two issues in contention: (a) whether Carl, Christian and Massimo should have their costs for the whole of the proceedings on a solicitor and client basis, or only costs on that basis from the time at which they took over the role of propounding the December 2020 will; and (b) whether Luisa and Eddy’s costs should be paid on a party and party basis or on a solicitor and client basis.
Fundamental to the submissions made by the executor is the fact that Carl, Christian and Massimo were originally joined to the proceedings as defendants. It was only upon the executor filing a submitting appearance that those parties stepped into the role of propounding the December 2020 will. From that point, they performed a role similar to that which the executor would otherwise have been required to perform.
The executor submitted that, prior to 7 December 2023, the participation by Carl, Christian and Massimo was reasonable, but was that of interested parties seeking an outcome which would be for their financial benefit. The executor submitted that they should not readily be allowed their costs out of the fund on a solicitor and client basis up to that point. However, from 7 December 2023, they stepped into the role that the executor would otherwise have performed, hence avoiding the need for the executor to incur costs in performing that role.
So far as Luisa and Eddy are concerned, they were unsuccessful in the proceedings and hence costs would normally follow the event. However, the executor submitted that it is common in probate matters for the costs of an unsuccessful, yet reasonable, party to be paid out of the estate. The executor accepted that the conduct in challenging the December 2020 will was justifiable having regard to the competing medical evidence. The executor noted that the motivation of Luisa and Eddy was, at least in part, that they stood to gain financially if probate of the December 2020 will was not granted and that, for this reason, they should have the costs out of the estate only on a party and party basis.
The submissions of Luisa and Eddy pointed to the decision of In the Estate of Edna Ann Levy [2018] ACTSC 150, in which McWilliam AsJ said that, in probate matters, unless a party has been vexatious or lacking in good faith, costs are usually allowed to all parties out of the trust fund. To similar effect, the submissions pointed to the decision in Elders Trustee & Executor Co Ltd v Eastoe [1963] WAR 36 at 40. They also identified the public interest in seeing that the last will of a free and capable testator is recognised and enforced. They submitted that, although ultimately unsuccessful, the claim was brought on a proper and reasonable basis that was arguable and made on the basis of information before them which led to a belief of a lack of testamentary capacity or lack of knowledge and approval of the final will. Decision
I accept that Eddy and Luisa acted reasonably, based upon the evidence available to them, in bringing proceedings to challenge the December 2020 will. In doing so, they were motivated, at least in part, by their own financial interests. I consider that the reasonableness of their conduct provides a basis not only for not making a costs order against them but for making a costs order in their favour. However, given that the claim was pursued, at least in part, for their own financial interests, I do not consider it appropriate that they be placed in the same position as an executor or a party performing a function that would otherwise have to be performed by the executor. I do not consider that the circumstances are such as to warrant an order that, notwithstanding their lack of success, they receive costs on a solicitor and client basis.
That conclusion also resolves the remaining issue in relation to the costs of Carl, Christian and Massimo. It is only during the period when they were performing a role that would otherwise have to have been performed by the executor that they should have their costs on a solicitor and client basis.
Orders
I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date:
Saeedi
Pastrello