McCredie v Batson (No. 2) [2021] NSWSC 78

McCredie v Batson (No. 2) [2021] NSWSC 78

Both sides had reasonable grounds for the litigation because each could point to proven evidence justifying the positions they took, and the litigation was conducted bona fide to advance what each sister believed the deceased wanted rather than for an improper purpose. Neither party was entitled to costs against the other: the plaintiff's original formulation and correspondence sought inappropriate relief and aggravated the litigation, while the overall outcome was more like the plaintiff's ultimate position. The appropriate order was therefore that the parties' costs on the issues determined in the 24 December 2020 judgment be paid out of the estate, with the burden borne equally by all...

Jurisdiction
Australia
Judgment Date
11 February 2021
Procedural Posture
Estate Litigation; Costs / Costs Hearing Following Judgment of 24 December 2020
Outcome
Costs ordered to be paid out of the estate; no costs order made in favour of either party against the other; further directions made for the balance of the proceedings.
Legal Topics
['costs in Estate Litigation' 'executors Unable to Agree' 'costs Out of the Estate' 'reasonable Grounds for Litigation' 'bona Fide Conduct of Litigation']
['equity' 'costs' 'succession and Probate'] ['costs in Estate Litigation' 'executors Unable to Agree' 'costs Out of the Estate' 'reasonable Grounds for Litigation' 'bona Fide Conduct of Litigation']

Case Brief

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Procedural Posture

Estate Litigation; Costs / Costs Hearing Following Judgment of 24 December 2020

Legal Issues

  1. 1 ["Whether the plaintiff or the defendant should pay the other party's costs of the proceedings." 'Whether there were reasonable grounds for the estate litigation.' 'Whether the litigation was conducted bona fide.' 'Whether the costs should be paid out of the estate and how the burden should be borne within the estate.']

Ratio Decidendi

Both sides had reasonable grounds for the litigation because each could point to proven evidence justifying the positions they took, and the litigation was conducted bona fide to advance what each sister believed the deceased wanted rather than for an improper purpose. Neither party was entitled to costs against the other: the plaintiff's original formulation and correspondence sought inappropriate relief and aggravated the litigation, while the overall outcome was more like the plaintiff's ultimate position. The appropriate order was therefore that the parties' costs on the issues determined in the 24 December 2020 judgment be paid out of the estate, with the burden borne equally by all...

Court Disposition

Costs ordered to be paid out of the estate; no costs order made in favour of either party against the other; further directions made for the balance of the proceedings.

Orders

  • ['The costs of the parties to these proceedings in respect of the issues determined in the judgment of 24 December 2020 will be paid out of the estate of the late Betty Batson and within the estate the burden of those costs will be borne equally by all the beneficiaries other than Mr David Jasper-Batson.' 'Order...