Mackinlay v Holliday (No 2) [2023] NSWSC 1024

Mackinlay v Holliday (No 2) [2023] NSWSC 1024

Plaintiff/cross-defendant should pay 50% of the defendant/cross-claimant's costs (other than costs of the application for costs), as both parties contributed to the incurring of disproportionate costs relative to the small estate value and the circumstances reasonably called for an investigation of the validity of the codicil; there is no basis for indemnity costs as no abuse of process was established. The defendant/cross-claimant is entitled to be indemnified out of the assets of the deceased's estate to the extent costs are not recovered from the plaintiff/cross-defendant.

Jurisdiction
Australia
Judgment Date
28 August 2023
Procedural Posture
Contested Probate / Costs Determination Following Final Judgment
Outcome
Orders for costs made as specified, allocating partial costs to plaintiff and indemnity from estate for defendant if not recovered.
Legal Topics
['costs' 'probate' 'validity of Codicil']
['equity' 'probate'] ['costs' 'probate' 'validity of Codicil']

Case Brief

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Procedural Posture

Contested Probate / Costs Determination Following Final Judgment

Legal Issues

  1. 1 ["Whether plaintiff/cross-defendant should pay defendant/cross-claimant's costs and if so, in what proportion" 'Whether indemnity costs order is justified based on abuse of process' 'Whether costs should be paid out of the estate']

Ratio Decidendi

Plaintiff/cross-defendant should pay 50% of the defendant/cross-claimant's costs (other than costs of the application for costs), as both parties contributed to the incurring of disproportionate costs relative to the small estate value and the circumstances reasonably called for an investigation of the validity of the codicil; there is no basis for indemnity costs as no abuse of process was established. The defendant/cross-claimant is entitled to be indemnified out of the assets of the deceased's estate to the extent costs are not recovered from the plaintiff/cross-defendant.

Court Disposition

Orders for costs made as specified, allocating partial costs to plaintiff and indemnity from estate for defendant if not recovered.

Orders

  • ["Order that the plaintiff/cross-defendant pay 50% of the defendant/cross-claimant's costs of the proceedings (other than the costs of the application for costs) on the ordinary basis." 'Order that to the extent the defendant/cross-claimant does not recover his costs from the plaintiff/cross-defendant, the...