NSW Trustee & Guardian v Hull & Anor (No 2) [2011] NSWSC 1361

NSW Trustee & Guardian v Hull & Anor (No 2) [2011] NSWSC 1361

The first Defendant’s costs claim fails because the proceedings were adversarial concerning entitlement on intestacy, not a joint approach for clarification, and the litigation did not benefit the estate. Accordingly, only the costs of the Plaintiff and the successful second Defendant are to be paid out of the estate on an indemnity basis; the first Defendant must pay his own costs.

Jurisdiction
Australia
Judgment Date
10 November 2011
Procedural Posture
Administration of Estate Proceedings / Costs Determination After Principal Judgment
Outcome
Costs orders made as set out in the judgment.
Legal Topics
['costs in Administration Proceedings' 'intestacy' 'entitlement on Intestacy' 'adverse Litigation in Estate Matters']
['equity' 'wills and Estates' 'civil Procedure'] ['costs in Administration Proceedings' 'intestacy' 'entitlement on Intestacy' 'adverse Litigation in Estate Matters']

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Procedural Posture

Administration of Estate Proceedings / Costs Determination After Principal Judgment

Legal Issues

  1. 1 ['Who should pay the costs of administration proceedings regarding entitlement on intestacy where paternity was in dispute.']

Ratio Decidendi

The first Defendant’s costs claim fails because the proceedings were adversarial concerning entitlement on intestacy, not a joint approach for clarification, and the litigation did not benefit the estate. Accordingly, only the costs of the Plaintiff and the successful second Defendant are to be paid out of the estate on an indemnity basis; the first Defendant must pay his own costs.

Court Disposition

Costs orders made as set out in the judgment.

Orders

  • ['The costs of the Plaintiff and of the second Defendant, each calculated on the indemnity basis, be paid out of the estate of the deceased.' 'No order as to the costs of the first Defendant, to the intent that he shall pay his own costs of the proceedings.']