Background
This was a costs judgment following the principal decision in Meoli v Romero [2026] NSWSC 973 concerning the will and codicil of Gabriel Charles Balcone. Andres Romero, the defendant and cross-claimant, succeeded overall: although his challenge to the codicil’s validity failed, the Court accepted his construction of the codicil and rejected the plaintiffs’ competing construction and their rectification claim.
That construction meant Andres received valuable parcels of shares under the will, rather than those shares forming part of a portfolio to be divided among seven named beneficiaries, including Flavio Meoli and Juan Romero. Andres sought indemnity costs from the plaintiffs personally, or alternatively from the estate. The plaintiffs sought indemnity costs from the estate for themselves and ordinary costs from the estate for Andres.
The Court’s Holding
Williams J rejected Andres’ contention that the plaintiffs’ case had no prospects and had needlessly exposed him to costs. The codicil was poorly drafted, and the competing construction arguments and rectification claim were reasonably arguable. The plaintiffs also reasonably defended Andres’ unsuccessful validity challenge.
The Court held that Andres should receive costs on the ordinary basis, not the indemnity basis. Because the plaintiffs acted reasonably as executors, their own costs were payable from the estate on an indemnity basis. Andres’ ordinary costs were likewise payable from the estate rather than by the plaintiffs personally.
Key Takeaways
- Indemnity costs are not warranted merely because a party ultimately loses a reasonably arguable probate dispute.
- Executors may recover reasonable litigation costs from the estate, including where their position is unsuccessful.
- Executors’ personal beneficiary interests did not displace their entitlement where their conduct remained consistent with administering the estate.
Why It Matters
The decision confirms that courts should avoid hindsight when assessing whether probate litigation was unreasonable for costs purposes. A failed construction or rectification argument may still be a proper exercise of an executor’s duties where the instrument is genuinely uncertain.
It also illustrates the distinction between the successful party’s ordinary costs and indemnity costs, and the circumstances in which an estate—not individual executors—will bear those costs.