Small v Phillips (No 3) [2020] NSWCA 24

Small v Phillips (No 3) [2020] NSWCA 24

Because the proceedings concerned the making of a statutory will for an incapacitated person and had a protective-jurisdiction and public-interest character, it was appropriate for all parties' costs of the appeal and Equity Division proceedings to be paid from Mrs Phillips' estate. Anthony was successful in invoking the jurisdiction under the Succession Act 2006 (NSW) and in having the appeal allowed, and the making of a statutory will served the public interest by addressing the real prospect of uncertainty about the 2001 Will and possible intestacy. Subject to disallowance of unreasonable costs under UCPR r 42.5(b), his costs were therefore payable on the indemnity basis; Sharonne's...

Jurisdiction
Australia
Judgment Date
26 February 2020
Procedural Posture
Costs in Statutory Will Proceedings in the Exercise of Protective Jurisdiction / On the Papers After Appeal Allowed; Reserved Questions of Costs of the Appeal and of the Proceedings in the Equity Division
Outcome
Costs ordered to be paid out of the estate of Mrs Phillips, with the appellant and the third and fourth respondents on the indemnity basis and the first and second respondents on the ordinary basis.
Legal Topics
['costs Orders' 'indemnity Costs' 'ordinary Basis Costs' 'statutory Wills' 'costs From Estate of Incapacitated Person']
['civil Procedure' 'succession' 'protective Jurisdiction' 'costs'] ['costs Orders' 'indemnity Costs' 'ordinary Basis Costs' 'statutory Wills' 'costs From Estate of Incapacitated Person']

Case Brief

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Procedural Posture

Costs in Statutory Will Proceedings in the Exercise of Protective Jurisdiction / On the Papers After Appeal Allowed; Reserved Questions of Costs of the Appeal and of the Proceedings in the Equity Division

Legal Issues

  1. 1 ['Whether the costs of all parties, both of the appeal and of the proceedings in the Equity Division, should be paid out of the estate of Mrs Phillips.' "Whether the appellant's costs should be paid on the ordinary basis or the indemnity basis." 'Whether the costs of the respondents should be paid on the ordinary basis or the indemnity basis.']

Ratio Decidendi

Because the proceedings concerned the making of a statutory will for an incapacitated person and had a protective-jurisdiction and public-interest character, it was appropriate for all parties' costs of the appeal and Equity Division proceedings to be paid from Mrs Phillips' estate. Anthony was successful in invoking the jurisdiction under the Succession Act 2006 (NSW) and in having the appeal allowed, and the making of a statutory will served the public interest by addressing the real prospect of uncertainty about the 2001 Will and possible intestacy. Subject to disallowance of unreasonable costs under UCPR r 42.5(b), his costs were therefore payable on the indemnity basis; Sharonne's...

Court Disposition

Costs ordered to be paid out of the estate of Mrs Phillips, with the appellant and the third and fourth respondents on the indemnity basis and the first and second respondents on the ordinary basis.

Orders

  • ['The costs of all parties, both of the appeal and of the proceedings in the Equity Division, be paid out of the estate of Mrs Phillips.' 'The costs of the Appellant be paid on the indemnity basis.' 'The costs of the First and Second Respondents be paid on the ordinary basis.' 'The costs of the Third and Fourth...