WHITTINGTON v JUNG [2026] SASC 65

Applicant: FELIX HEALY WHITTINGTON - Solicitor: AM LEGAL Respondent: NYAH CALIFIA JUNG - Solicitor: STARKE LAWYERS Hearing Date/s: 10/03/2026 File No/s: CIV-25-011656 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. WHITTINGTON v JUNG [2026] SASC 65 Decision of the Honourable Auxiliary Associate Justice Flourentzou 7 May 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL MATTERS - POWER TO AWARD GENERALLY - OTHER MATTERS Reasons on costs of the action. Succession Act 2023 (SA) s 67; Supreme Court Act 1935 (SA) s 40, referred to. In the Estate of Keith Chander Crane [2005] SASC 379, considered. -- 1 of 8 -- -- 2 of 8 -- WHITTINGTON v JUNG [2026] SASC 65 1 Catherine Linnell Healy late of 15 Aldam Avenue, Aldinga Beach 5173 died at Aldinga Beach 5173 on 10 February 2020 (the Deceased). 2 The Deceased was survived by two children, Felix Healy Whittington and Nyah Califia Jung. Without intending any disrespect, I will refer to the parties by their first names hereinafter. Felix and Nyah are half-siblings. They both reside in the United States of America. 3 During the Deceased’s lifetime, she executed a will dated 22 February 2019 (the Will). Pursuant to the terms of the Will, she appointed Felix and Nyah as her executors and trustees, and she gave her estate equally to them. The major asset of the Deceased’s estate is a property located at 15 Aldam Avenue, Aldinga Beach 5173 (the Property). 4 Felix commenced the current proceedings. The orders sought in the Originating Application will be discussed below. 5 However, by consent, an order was made on 18 February 2026 that Felix and Nyah to be passed over as the executors as described in the Will and that a solicitor, Ms Shona Hoskins, be appointed as the administrator of the Deceased’s estate.1 6 The parties’ costs are the remaining issue in dispute. 7 Felix seeks an order that his costs of and incidental to the Originating Application be paid by Nyah, without recourse from the estate, on the footing of an indemnity. In the alternative, Felix seeks an order that his costs be paid by the estate and that Nyah should bear her own costs. 8 Nyah submits that Felix should pay her costs of and incidental to this action on a Solicitor/Client basis. 9 The parties never disputed that the Will was entitled to Proof. Rather, the issue was in relation to who should apply for the grant to then administer the Deceased’s estate. Consideration The application for a grant of probate (PROB-22-003037) 10 On 17 May 2022, Nyah filed an application seeking a grant of probate of the Will as one of the executors as described in the Will with leave reserved to Felix. That application was rejected on 30 May 2022 due to multiple fundamental errors with the application. 1 Granted Order dated 18 February 2026 (FDN 13). -- 3 of 8 -- [2026] SASC 65 Flourentzou AAsJ 2 The first caveat (PROB-22-005600) 11 On 30 August 2022, Felix lodged a caveat against a grant of probate issuing (the First Caveat). However, the First Caveat was not renewed and expired on 2 March 2023. The second caveat (PROB-23-008754) 12 Felix then lodged a second caveat on 13 December 2023 (the Second Caveat). The Second Caveat continued to be renewed. 13 The Second Caveat was not warned but as a result of the consent orders made on 18 February 2026, Felix withdrew the Second Caveat. The current proceedings (CIV-25-011656) 14 On 3 October 2025, Felix commenced these proceedings seeking the following orders: 1. Pursuant to rule 254.8, the Respondent who is in possession and custody of the original Will of Catherine Linnell Healy dated 22 February 2019 deposit it with the Registrar of Probates forthwith; 2. That the Caveats lodged by the Applicant first filed on 13 December 2023, and as renewed bearing case number PROB-23-008754 be withdrawn contemporaneously with proposed order 3 below; 3. That the Applicant be at liberty to file the Application for Probate in his sole name only; and 4. The Applicant’s costs. Order 1 seeking production of the original Will 15 The correct procedure that should have been adopted regarding this order is r 353.3 of the Uniform Civil Rules 2020 (the Rules), which states: 353.3—Application for order to bring in a testamentary document or attend for examination (1) An application under section 60 of the Act for a subpoena to attend for examination or section 61 of the Act for a subpoena requiring a person to produce a testamentary document in the possession of or under the control of a person must be made by lodging an Originating Application in the prescribed form supported by an affidavit in the prescribed form. Prescribed forms— Form PROB2 Originating Application - Probate Inter Partes Form PROB10 Affidavit in Support of Order to Issue Subpoena Form PROB34 Affidavit -- 4 of 8 -- [2026] SASC 65 Flourentzou AAsJ 3 (2) The applicant must join as a respondent the person on whom the subpoena is sought to be served. (3) The supporting affidavit must establish to the Court’s satisfaction the existence of the testamentary document or that the respondent has knowledge of such document that would assist the Court. (4) If the subpoena is to be served on an organisation, the subpoena is to be addressed to its Proper Officer. (5) A person who is required to respond to a subpoena— (a) must comply with the subpoena by attending at the Court for examination or producing the document sought (as required); or (b) if the subpoena is confined to the production of a document(s)—may file an affidavit on the Electronic System denying that the document is in their possession, custody or power. Note— Failure to comply with a subpoena is a contempt of Court and may be the subject of a contempt proceeding under Chapter 17 Part 5. 16 Felix should have commenced an Originating Application via the Probate Registry seeking an order that the original Will be produced to the Probate Registry. 17 In any event, at the first directions hearing of these proceedings on 31 October 2025, an order was made that Nyah deliver the original Will to the Probate Registry forthwith. In accordance with the Court order, the original will was produced to the Probate Registry on 19 November 2025 (19 days after the order was made). Order 2 and 3 that the Probate Caveats be withdrawn contemporaneously when a grant application is filed by Felix 18 I do not understand orders 2 or 3. 19 The First Caveat expired and the Second Caveat was lodged by Felix. In accordance with r 354.3, Felix could have withdrawn his caveat at any point. Rule 354.3 states: 354.3—Withdrawal of caveat (1) A caveator may withdraw a caveat at any time before an appearance to a warning is entered and the caveat thereupon ceases to have effect. (2) A caveat may be withdrawn by completing a withdrawal of caveat on the Electronic System. 20 Unless the Second Caveat was warned and an appearance was entered an order for the removal of the Second Caveat was not going to be required. -- 5 of 8 -- [2026] SASC 65 Flourentzou AAsJ 4 Furthermore, the procedure that governs caveats is outlined at Part 4 Division 1 of Chapter 25 of the Rules. 21 Regarding order 3, Felix as one of the executors as described in the Will was always entitled to apply for a grant of probate with leave reserved to Nyah. Rule 356.20(5) states: (5) A grant may be made to a person entitled to a grant without notice to other persons entitled in the same order of priority. 22 Therefore, if an Originating Application was commenced via the Probate Registry seeking an order under r 353.3, upon the Will being produced to the Probate Registry, Felix would have been entitled to apply for a grant of probate under r 356.20(5). This would have been on the basis that leave is reserved to Nyah and that she would be entitled to apply for a grant of double probate under r 357.4. 23 However, because Felix does not reside locally within South Australia, compliance with marking the original Will under r 356.5 would have caused some difficulties, and compliance with the that rule is not easily dispensed with. The real issue in dispute 24 It is apparent from the evidence that Felix and Nyah were unable to work together to be able to apply for a grant of probate. 25 Although the proceedings were not commenced correctly, effectively Felix was ultimately seeking an order that Nyah be passed over as one of the executors as described in the Will to apply for grant of probate so that he could then apply for a grant of probate. 26 That order should have been sought via an Originating Application commenced under r 354.11 which states: 354.11—Application to pass over (1) An application seeking an order for passing over must be instituted by lodging an Originating Application in the prescribed form supported by an affidavit in the prescribed form. Note— See section 67 of the Act Prescribed forms— Form PROB2 Originating Application – Probate Inter Partes Form PROB34 Affidavit (2) The applicant must join the person sought to be passed over as a respondent. -- 6 of 8 -- [2026] SASC 65 Flourentzou AAsJ 5 (3) Unless a separate affidavit of disclosure in the prescribed form is filed, the supporting affidavit must disclose to the best of the applicant’s ability the assets and liabilities of the estate of the deceased in terms of the content of the statement annexed to the prescribed form. Prescribed form— Form PROB46 Affidavit of Assets and Liabilities (4) If the application is contested and cannot be resolved, it will ordinarily be referred by the Registrar to a Justice or Associate Justice for hearing and determination. (5) If the Court makes an order under this Division, an application for a grant can then proceed under Part 6, with a copy of the order uploaded to the application Note- If the application is for a grant of letters of administration with or without the will annexed a copy of the order must be annexed to the oath and uploaded to the application. If the application is for a grant of probate, the order must be uploaded to the application. 27 In addition, s 67 of the Succession Act 2023 (SA) states: 67—Grant of probate or administration to person other than the person otherwise entitled (1) If the Court considers it appropriate— (a) for the proper administration of the estate of a deceased person; and (b) in the interests of the persons who are, or may be, interested in the estate of the deceased person, to grant probate of the deceased person's will or administration of the deceased person's estate to a person other than the person, or all of the persons, otherwise entitled to the grant of probate or administration, the Court may instead, on application, grant probate or administration to— (c) without limiting paragraph (b), if there is more than 1 person entitled to the grant—any or all of the other persons entitled; or (d) any person the Court considers appropriate. (2) If the Court considers that there are reasonable grounds for believing that a person otherwise entitled to a grant of probate of the will of a deceased person or administration of the estate of a deceased person has committed an offence relating to the deceased person's death, the Court may instead of granting probate or administration to that person, grant probate or administration to— (a) without limiting paragraph (b), if there is more than 1 person entitled to the grant—any or all of the other persons entitled; or (b) any person the Court considers appropriate. -- 7 of 8 -- [2026] SASC 65 Flourentzou AAsJ 6 (3) An application for a grant of probate or administration under this section must be made in accordance with the rules. (4) The Court may make a grant of probate or administration under this section subject to such conditions that the Court thinks appropriate (but may not require any surety in relation to the grant). 28 Furthermore, Justice Besanko’s decision in In the Estate of Keith Chander Crane further supports the position that a pass over application is to be commenced via the Testamentary Causes Jurisdiction.2 29 The parties were never in dispute regarding the validity of Will. Rather, they were unable to work together to obtain a grant of probate to administer the estate. The orders sought were not properly articulated and should have been sought via the Testamentary Causes Jurisdiction filed with the Probate Registry. 30 Felix and Nyah both reside overseas, and the major asset of the estate is the Property located within South Australia. Due to the conflict between them, the logical resolution to their dispute was always going to be for an independent administrator to be appointed to apply for a grant of letters of administration with the Will annexed. In addition, it is difficult to see how either of them would be able carry out their executorial duties when neither of them resides within South Australia. 31 I accept that the proceedings were fundamentally incorrectly commenced and that the orders sought were also incorrect. However, the Deceased died over six years ago, and something needed to occur for the estate to be administered. Indeed, a limited administrator has never been appointed to even maintain the assets of the estate.3 32 As a result of the proceedings being commenced, the parties have reached a sensible resolution for an independent administrator to be appointed to apply for a grant of representation to then proceed to administer the estate. 33 Pursuant to s 40 of the Supreme Court Act 1935 (SA) the Court has an unfettered discretion as to costs. Furthermore, the Rules provide a number of discretionary considerations.4 34 Therefore, based on the history of this matter, I am prepared to order that both parties’ costs are to be paid by the estate on a standard costs basis. However, the Applicant is not entitled to be reimbursed for the filing that was paid to commence the proceedings through the Civil Registry. 2 In the Estate of Keith Chander Crane [2005] SASC 379. 3 Uniform Civil Rules 2020, rr 355.4 and 355.5. 4 Ibid r 194.6. -- 8 of 8 --