Clines v Johnston and Anor (No. 2) [2008] NSWSC 742

Clines v Johnston and Anor (No. 2) [2008] NSWSC 742

As the circumstances of the case reasonably caused investigation but the deceased was not the cause of the litigation, and the defendants elected to fully defend despite evidence of a further testamentary instrument known to one defendant, the plaintiff's costs are paid out of the estate on the indemnity basis, but the defendants' costs should lie where they fall.

Jurisdiction
Australia
Judgment Date
19 June 2008
Procedural Posture
Probate Litigation / Costs Determination After Judgment
Outcome
Plaintiff's costs on indemnity basis paid out of estate; otherwise, no order as to costs; declarations and orders made per draft with amendment to paragraph (3).
Legal Topics
['probate Litigation Costs' 'exceptions to Costs Following the Event']
['succession Law' 'costs'] ['probate Litigation Costs' 'exceptions to Costs Following the Event']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Probate Litigation / Costs Determination After Judgment

Legal Issues

  1. 1 ["Whether unsuccessful defendants' costs in probate litigation should be paid out of the estate or lie where they fall"]

Ratio Decidendi

As the circumstances of the case reasonably caused investigation but the deceased was not the cause of the litigation, and the defendants elected to fully defend despite evidence of a further testamentary instrument known to one defendant, the plaintiff's costs are paid out of the estate on the indemnity basis, but the defendants' costs should lie where they fall.

Court Disposition

Plaintiff's costs on indemnity basis paid out of estate; otherwise, no order as to costs; declarations and orders made per draft with amendment to paragraph (3).

Orders

  • ["Plaintiff's costs on an indemnity basis be paid out of the estate of the deceased." "No order as to the defendants' costs; defendants' costs to lie where they fall." "Declarations and orders made in accordance with plaintiff's draft orders (as amended)."]