Long v Long; Estate of Ethel Edith Long (No 2) [2004] NSWSC 1114

Long v Long; Estate of Ethel Edith Long (No 2) [2004] NSWSC 1114

The defendant did not act unreasonably in opposing the rectification application and testing the plaintiff's evidence, so she should not be deprived of indemnity costs out of the estate under the Hodges exception. However, because the litigation was in reality caused by the solicitors' drafting error and the estate should not ultimately bear that burden, the appropriate outcome may be for the solicitors to protect the estate against the defendant's indemnity costs. Since the solicitors were not parties and had not been heard on that proposition, the applications for costs had to stand over and the solicitors had to be given an opportunity to make submissions.

Jurisdiction
Australia
Judgment Date
19 November 2004
Procedural Posture
Proceedings for Rectification of a Will Under S.29 a of the Wills Probate and Administration Act 1898; Costs Applications / Written Submissions on Costs After an Order Rectifying the Will; Applications for Costs Stood Over
Outcome
Applications for costs stand over.
Legal Topics
['rectification of Will' 'costs' 'indemnity Costs' 'solicitor Drafting Error' 'costs Against Solicitors']
['succession' 'probate' 'civil Procedure'] ['rectification of Will' 'costs' 'indemnity Costs' 'solicitor Drafting Error' 'costs Against Solicitors']

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Procedural Posture

Proceedings for Rectification of a Will Under S.29 a of the Wills Probate and Administration Act 1898; Costs Applications / Written Submissions on Costs After an Order Rectifying the Will; Applications for Costs Stood Over

Legal Issues

  1. 1 ["Whether the defendant's costs should be assessed on the indemnity basis and paid out of the estate." 'Whether there should otherwise be no order as to costs.' "Whether the plaintiff's solicitors, who prepared the will, should indemnify the plaintiff or the estate for costs arising from the drafting error." "Whether the defendant acted unreasonably in opposing rectification and testing the plaintiff's evidence." 'Whether the solicitors should be heard before any order is made requiring them to indemnify the estate.']

Ratio Decidendi

The defendant did not act unreasonably in opposing the rectification application and testing the plaintiff's evidence, so she should not be deprived of indemnity costs out of the estate under the Hodges exception. However, because the litigation was in reality caused by the solicitors' drafting error and the estate should not ultimately bear that burden, the appropriate outcome may be for the solicitors to protect the estate against the defendant's indemnity costs. Since the solicitors were not parties and had not been heard on that proposition, the applications for costs had to stand over and the solicitors had to be given an opportunity to make submissions.

Court Disposition

Applications for costs stand over.

Orders

  • ['The applications for costs orders stand over to a date to be fixed.' "A copy of the reasons is to be forwarded to the plaintiff's solicitors with a letter from the Associate inviting them, within fourteen days, either to make written submissions on the proposition that they be ordered to indemnify the estate...