Bolger v McDermott (No 2) [2013] NSWSC 1330

Bolger v McDermott (No 2) [2013] NSWSC 1330

Given the Plaintiff's conduct in propounding contested testamentary documents, significant late disclosure, and findings adverse to his credit, justice required that in the Probate proceedings the Defendants' costs be paid by the Plaintiff on the indemnity basis, and any shortfall to be paid out of the estate; in the family provision proceedings, costs follow the event on the ordinary basis, to be paid by the first Plaintiff, with unrecovered costs (and indemnity difference) to be paid out of the estate.

Jurisdiction
Australia
Judgment Date
16 September 2013
Procedural Posture
Probate and Family Provision Proceedings / Determination of Costs Following Judgment
Outcome
Orders for costs issued in both proceedings, with Plaintiff to pay Defendants' costs (indemnity in Probate, ordinary in family provision), unrecovered amounts to be paid out of estate; costs constitute a charge on Plaintiff's entitlement; further property-related orders and directions as specified.
Legal Topics
['costs Orders' 'indemnity Costs' 'probate Litigation' 'family Provision Claim' 'discretion as to Costs']
['equity' 'succession Law' 'family Provision' 'probate'] ['costs Orders' 'indemnity Costs' 'probate Litigation' 'family Provision Claim' 'discretion as to Costs']

Case Brief

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Procedural Posture

Probate and Family Provision Proceedings / Determination of Costs Following Judgment

Legal Issues

  1. 1 ['Whether costs in unsuccessful probate and family provision proceedings should be paid on the indemnity or ordinary basis' 'Whether to apportion costs between proceedings' 'Whether estate should bear unrecovered costs' "Whether Plaintiff's conduct warranted indemnity costs in Probate"]

Ratio Decidendi

Given the Plaintiff's conduct in propounding contested testamentary documents, significant late disclosure, and findings adverse to his credit, justice required that in the Probate proceedings the Defendants' costs be paid by the Plaintiff on the indemnity basis, and any shortfall to be paid out of the estate; in the family provision proceedings, costs follow the event on the ordinary basis, to be paid by the first Plaintiff, with unrecovered costs (and indemnity difference) to be paid out of the estate.

Court Disposition

Orders for costs issued in both proceedings, with Plaintiff to pay Defendants' costs (indemnity in Probate, ordinary in family provision), unrecovered amounts to be paid out of estate; costs constitute a charge on Plaintiff's entitlement; further property-related orders and directions as specified.

Orders

  • ["Plaintiff to pay Defendants' costs of Probate proceedings (2011/288478) on the indemnity basis." "Any of Defendants' costs of Probate proceedings not recovered from Plaintiff to be paid out of estate." "Defendants' costs of both proceedings to be apportioned equally between the two for assessment purposes." "First...