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File Number(s): 2024/44876

Publication restriction: N/A

JUDGMENT

1. These reasons concern the costs of these proceedings, in which the principal judgment was delivered on 11 August 2026. [1]

2. Familiarity with the principal judgment is assumed.

3. The plaintiff failed in his application for a grant of probate in respect of the deceased’s will dated 12 October 2023 because the plaintiff failed to discharge his onus of proving that the deceased knew and approved the contents of that will which was executed in the context of the thirteen suspicious circumstances found in the principal judgment at [142]. The defendants failed in respect of their alternative contentions that the deceased lacked testamentary capacity and that the deceased executed the will under the undue influence and control of the plaintiff.

4. The defendants seek an order that the plaintiff pay their costs of the proceedings on the ordinary basis up to and including 5 September 2025, and on an indemnity basis from 6 September 2025 pursuant to r 42.15 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR).

5. The plaintiff seeks an order that he pay his own costs of the proceedings. Although it is not expressly stated in the plaintiff’s submissions, I infer that the plaintiff contends that he should not be ordered to pay the defendants’ costs, and that the defendants should bear their own costs.

6. Neither party submits that the Court should make separate costs orders in relation to the issues determined in the proceedings.

7. As the defendants submitted, and drawing on my recent summary of the principles applicable to costs in probate litigation in Bruce v Bruce, [2] the Court has a broad discretion in relation to costs under s 98 of the Civil Procedure Act 2005 (NSW). The discretion must be exercised judicially and in accordance with established principles or legislation. By reason of r 42.1 of the UCPR, costs 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.

8. In probate litigation, the existence of circumstances that reasonably called for an investigation of the will might result in the Court determining in a particular case that some order should be made other than an order that costs follow the event. Where the plaintiff’s challenge to the will is unsuccessful in such a case, the costs may be left to be borne by those who incurred them. [3]

9. I accept the plaintiff’s submission that there were circumstances that reasonably called for an investigation of the will in the present case. I refer in particular to the principal judgment at [141]-[148]. The plaintiff’s own conduct generated circumstances (i) and (ii) and contributed to circumstances (viii) and (ix) referred to at [141] of the principal judgment. For that reason, I do not consider that the existence of circumstances calling for an investigation of the will warrants the Court departing from the usual order that costs follow the event. Accordingly, there will be an order that the plaintiff is to pay the defendants’ costs.

10. The remaining question is whether those costs should be paid on an indemnity basis rather than the ordinary basis from 6 September 2025, being the day after the defendants made an offer of compromise which the plaintiff rejected.

11. There is no dispute that the offer was a valid offer of compromise under r 20.26 of the UCPR and that the terms of the offer were more favourable to the plaintiff than the judgment.

12. Accordingly, unless the Court orders otherwise, the defendants are entitled under r 42.15(2) of the UCPR to an order that the plaintiff pay their costs on an indemnity basis from 6 September 2025.

13. The plaintiff bears the onus of persuading the Court to exercise the discretion to order otherwise. The exercise of that discretion depends on satisfaction that the circumstances of the particular case are sufficient to justify a departure from the presumptive rule in r 42.15(2). [4]

14. The defendants submit, and the plaintiff does not dispute, that the offer constituted a genuine compromise and was made at a time when the pleadings had closed and the parties had served the substantive evidence on which they intended to rely.

15. The plaintiff submits that the Court should order otherwise in the present case, by ordering the plaintiff to pay his own costs of the proceedings, including those costs from 6 September 2025, for two reasons.

16. First, the plaintiff submits that the litigation was not caused by the plaintiff, but by the conduct of Mr Mathey, the solicitor engaged by the plaintiff to prepare the deceased’s will that was the subject of these proceedings, in failing to prepare a will in terms that reflected the deceased’s instructions.

17. That submission overlooks the evidence referred to at [94] and [97] of the principal judgment concerning the plaintiff’s role in the events which led to Mr Mathey preparing the will in the terms in which it was executed. It was the plaintiff who ultimately placed the will before the deceased for execution, in the presence of the witnesses arranged by him, and in circumstances where Mr Mathey had not attended on the deceased as the plaintiff had initially asked him to do. I reject the submission that Mr Mathey’s role in the course of events is a reason to order otherwise under r 42.15(2) in this case.

18. Second, the plaintiff submits that the findings made by the Court would have entitled the plaintiff to an order under s 27(1)(b) of the Succession Act 2006 (NSW) rectifying the will to provide that the plaintiff receive the deceased’s Willoughby property rather than the whole of the estate.

19. That submission fails to grapple with the fact that no such rectification claim was made by the plaintiff in these proceedings. From beginning to end, the plaintiff pressed his claim for a grant of probate in respect of the will which provided for the entire estate of the deceased to pass to the plaintiff. A rectification claim, if made, would have been no answer to the plaintiff’s failure to prove that the deceased knew and approved the terms of the will that she executed in the context of the thirteen suspicious circumstances found at [142] of the principal judgment. For those reasons, I reject the submission that the second matter articulated by the plaintiff is a reason to order otherwise under r 42.15(2) in this case.

20. For all of those reasons, the order of the Court is as follows:

21. Order that the plaintiff is to pay the defendants’ costs of the proceedings on the ordinary basis up to and including 5 September 2025 and on an indemnity basis thereafter.

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Endnotes

The Estate of the late Wilma Annette Pusterla [2026] NSWSC 951.

[2026] NSWSC 977.

Alexakis v Masters (No 3) [2023] NSWSC 694 at [7]-[14] (Henry J) and the authorities there referred to; Kemp v Findlay [2025] NSWCA 46 at [220]-[230] (Ward P, Leeming and Ball JJA agreeing); Farah v Farah (No 2) [2026] NSWSC 631 at [11] (Nixon J).

See, for example, Leach v Nominal Defendant [2014] NSWCA 391 at [46]-[48] (McColl JA, Gleeson JA and Sackville AJA agreeing); Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268 at [28] and [32]-[36] (Gleeson JA and Tobias AJA); Bassett v Bassett [2021] NSWCA 320 at [253] (Bell P, as the Chief Justice then was, Leeming and Payne JJA agreeing).