Maxwell v Maxwell (No 2) [2022] NSWSC 1146

Maxwell v Maxwell (No 2) [2022] NSWSC 1146

The appropriate order was that each party bear her, his or its own costs because the principal issue arose from the deceased's own conduct and shifting stance about the gift to Jamila, the plaintiffs' pursuit of a determination of ownership was effectively for the benefit of the estate, and there were no estate assets available to meet an order applying the usual probate-style approach where the deceased caused the litigation. It would not be just to require the plaintiffs to pay Jamila's costs despite her substantive success.

Jurisdiction
Australia
Judgment Date
26 August 2022
Procedural Posture
Costs Determination in Equity Proceedings Concerning a Deceased Estate Dispute / On the Papers After Substantive Judgment
Outcome
First cross-claim dismissed; no order as to costs, with each party to bear her, his or its own costs.
Legal Topics
['party/party Costs' 'exceptions to the General Rule That Costs Follow the Event' 'costs Payable Out of a Fund' 'litigation Caused by Conduct of the Deceased' 'cross Claims' 'inter Vivos Gift of Gold Bullion']
['costs' 'civil Procedure' 'equity' 'succession and Deceased Estates'] ['party/party Costs' 'exceptions to the General Rule That Costs Follow the Event' 'costs Payable Out of a Fund' 'litigation Caused by Conduct of the Deceased' 'cross Claims' 'inter Vivos Gift of Gold Bullion']

Case Brief

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Procedural Posture

Costs Determination in Equity Proceedings Concerning a Deceased Estate Dispute / On the Papers After Substantive Judgment

Legal Issues

  1. 1 ['Whether the usual order that costs follow the event should be made in favour of Jamila after her success on the substantive dispute concerning 445 ounces of gold bullion.' "Whether the plaintiffs were justified in bringing proceedings to determine ownership of the gold because the deceased's conduct caused confusion about the inter vivos gift." "Whether costs should be apportioned or offset having regard to the first cross-claim and Plassey's second cross-claim concerning 255 ounces of gold." 'Whether, given the lack of estate assets, the appropriate order was that each party bear her, his or its own costs.']

Ratio Decidendi

The appropriate order was that each party bear her, his or its own costs because the principal issue arose from the deceased's own conduct and shifting stance about the gift to Jamila, the plaintiffs' pursuit of a determination of ownership was effectively for the benefit of the estate, and there were no estate assets available to meet an order applying the usual probate-style approach where the deceased caused the litigation. It would not be just to require the plaintiffs to pay Jamila's costs despite her substantive success.

Court Disposition

First cross-claim dismissed; no order as to costs, with each party to bear her, his or its own costs.

Orders

  • ['In addition to the orders made on 3 August 2022 and for completeness, order that the first cross-claim be dismissed.' 'Order that there be no order as to the costs of the proceedings (including of the amended statement of claim and the respective cross-claims) with the intent that each party bear her, his or its...