Renke J

4.29: Costs consequences of formal offer to settle

Case Summary

Following a Trial in an estate Action in which the Applicant, a sister of the Testator, sought to have the two most recent wills of the Testator (the “Wills”) declared invalid, Renke J. concluded that both of the Wills were the product of undue influence by the Respondent and therefore invalid. Renke J. directed that the Parties provide written submissions on Costs.

Justice Renke considered Rule 4.29 which provides that if a party makes a Formal Offer to Settle that is not accepted and the party subsequently obtains a Judgment or Order in the Action that is equal to or more favorable than the Formal Offer, that party is entitled to double the Costs awarded. His Lordship noted that Rule 4.29 applied to Actions governed by Surrogate Rule 2.

Prior to Trial, the Applicant had made a Formal Offer to the Respondent (the “Offer”) which was less favorable than what the Applicant ultimately received at Trial. Renke J. noted that, under Rule 4.29, beating an offer is a necessary component to receiving double Costs but it is not a “sufficient condition” for such entitlement. Justice Renke explained that there are two qualifications to an award of double Costs. First, under Rule 4.29(4)(e), the Court may order that Rule 4.29(1) shall not apply, if “special circumstances” are established. Second, under Surrogate Rule 2(2) “[t]he court may vary any rule in any case where the court decides it is appropriate to do so”.

Justice Renke concluded that the Formal Offer was genuine and was a reasonable proposal to conclude the litigation in advance of Trial. His Lordship found that there were no special or other circumstances that would warrant varying Rule 4.29(1). Given the $330,000.00 value of the estate, Justice Renke awarded the Applicant double Costs for all steps taken in relation to the Action after service of the Formal Offer under Schedule C, Column 3, of the Rules.

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