The Estate of Bourke [2024] NSWSC 280

The Estate of Bourke [2024] NSWSC 280

The Court could not conclude that either party would have succeeded on the January 2024 motion, and both sides behaved unreasonably by failing to cooperate to give effect to the September 2023 orders. Applying Lai Qin and Aust-Home Investments, each party was to bear his or her own costs of the motion. The plaintiff was not entitled to be indemnified out of the estate because his costs were not shown to have been reasonably and properly incurred, given the way the complaint was framed, the failure to pause before filing the motion, and the polemical correspondence.

Jurisdiction
Australia
Judgment Date
22 March 2024
Procedural Posture
Equity Probate List; Contested Probate Suit; Costs of Notice of Motion / Consequential Orders After Plaintiff's January 2024 Notice of Motion Was Dismissed by Consent Except as to Costs
Outcome
No order as to costs of the plaintiff's Notice of Motion; plaintiff not indemnified out of the estate for his costs of the motion.
Legal Topics
['party/party Costs Discretion' 'costs of Dismissed Motion Resolved by Agreement' 'executor Indemnity From Estate' 'implementation of Consent Probate Orders' 'variation of Final Orders' 'lai Qin Principles']
['costs' 'probate and Administration of Estates' 'civil Procedure'] ['party/party Costs Discretion' 'costs of Dismissed Motion Resolved by Agreement' 'executor Indemnity From Estate' 'implementation of Consent Probate Orders' 'variation of Final Orders' 'lai Qin Principles']

Case Brief

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Procedural Posture

Equity Probate List; Contested Probate Suit; Costs of Notice of Motion / Consequential Orders After Plaintiff's January 2024 Notice of Motion Was Dismissed by Consent Except as to Costs

Legal Issues

  1. 1 ["Who should bear the costs of the plaintiff's Notice of Motion filed in January 2024 after the motion was dismissed by consent." 'Whether either party was almost certain to have succeeded on the motion if it had been fully tried.' 'Whether either party conducted itself unreasonably in relation to implementation of the September 2023 orders.' 'Whether the plaintiff, as executor, should be indemnified out of the estate for his costs of the motion.']

Ratio Decidendi

The Court could not conclude that either party would have succeeded on the January 2024 motion, and both sides behaved unreasonably by failing to cooperate to give effect to the September 2023 orders. Applying Lai Qin and Aust-Home Investments, each party was to bear his or her own costs of the motion. The plaintiff was not entitled to be indemnified out of the estate because his costs were not shown to have been reasonably and properly incurred, given the way the complaint was framed, the failure to pause before filing the motion, and the polemical correspondence.

Court Disposition

No order as to costs of the plaintiff's Notice of Motion; plaintiff not indemnified out of the estate for his costs of the motion.

Orders

  • ["Note that there will be no order as to costs of the plaintiff's Notice of Motion filed on 24 January 2024 to the intent that each party will bear his and her own costs of the motion." 'Order that the plaintiff will not be indemnified out of the estate in respect of his costs of the motion.']