Smith v O'Neill (No 2) [2014] NSWSC 1285

Smith v O'Neill (No 2) [2014] NSWSC 1285

In probate proceedings with a mixed result where each party succeeded on some issues and the substratum of facts was essentially the same, it is appropriate to make no order as to costs, requiring each party to bear their own costs, rather than apportion costs by issues or follow the usual rule that costs follow the event.

Parties
First Plaintiff: Ian Russell Smith; Second Plaintiff: Norman Joseph Smith; Defendant: Gary Mervyn John O'Neill
Jurisdiction
Australia
Judgment Date
28 August 2014
Procedural Posture
Probate Proceedings / Costs Determination After Substantive Judgment
Outcome
No order as to costs, each party to bear their own costs.
Legal Topics
Costs, Probate, Testamentary Capacity, Due Execution of Will, Knowledge and Approval, Breach of Fiduciary Duty, Breach of Retainer
Equity Succession Civil Procedure Costs Probate Testamentary Capacity Due Execution of Will Knowledge and Approval +2 more

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Parties

Ian Russell Smith

First Plaintiff

Norman Joseph Smith

Second Plaintiff

Gary Mervyn John O'Neill

Defendant

Procedural Posture

Probate Proceedings / Costs Determination After Substantive Judgment

Legal Issues

  1. 1 Whether Plaintiffs should receive costs for success on due execution issue
  2. 2 Whether Defendant should receive costs for success on knowledge and approval
  3. 3 Whether differentiation of costs by issue is appropriate

Ratio Decidendi

In probate proceedings with a mixed result where each party succeeded on some issues and the substratum of facts was essentially the same, it is appropriate to make no order as to costs, requiring each party to bear their own costs, rather than apportion costs by issues or follow the usual rule that costs follow the event.

Court Disposition

No order as to costs, each party to bear their own costs.

Orders

  • No order as to costs of either party, each to bear their own costs of the proceedings.
  • No order as to costs for the costs application.