Drivas v Jakopovic (No. 2) [2019] NSWSC 376

Drivas v Jakopovic (No. 2) [2019] NSWSC 376

Even if Anita Drivas had a reasonable basis for questioning the will, this did not entitle her to an order for costs. The circumstances required an inferential approach given the lack of direct evidence, and neither party's evidence was entirely satisfactory. Given these circumstances and the closeness of the case, it was not unreasonable for Anita to continue the litigation after Mr Taylor's affidavit, but not sufficient for her to recover costs. The proper order is that each party should bear their own costs.

Jurisdiction
Australia
Judgment Date
04 April 2019
Procedural Posture
Contested Probate Litigation / Determination of Costs Following Substantive Judgment
Outcome
No order as to the costs of the proceedings.
Legal Topics
['probate' 'costs in Probate Litigation' 'exceptions to General Rule Costs Follow Event']
['equity' 'costs'] ['probate' 'costs in Probate Litigation' 'exceptions to General Rule Costs Follow Event']

Case Brief

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Procedural Posture

Contested Probate Litigation / Determination of Costs Following Substantive Judgment

Legal Issues

  1. 1 ["Whether the unsuccessful plaintiff should be ordered to pay the defendant's costs after service of Mr Taylor's affidavit" 'Whether the circumstances of the proceedings fell within exceptions to the general rule that costs follow the event in contested probate litigation']

Ratio Decidendi

Even if Anita Drivas had a reasonable basis for questioning the will, this did not entitle her to an order for costs. The circumstances required an inferential approach given the lack of direct evidence, and neither party's evidence was entirely satisfactory. Given these circumstances and the closeness of the case, it was not unreasonable for Anita to continue the litigation after Mr Taylor's affidavit, but not sufficient for her to recover costs. The proper order is that each party should bear their own costs.

Court Disposition

No order as to the costs of the proceedings.

Orders

  • ['No order as to the costs of the proceedings.']