Re Will of Jane [No 2] [2011] NSWSC 883

Re Will of Jane [No 2] [2011] NSWSC 883

The unsuccessful Plaintiff should bear the burden of the first Defendant's costs of the proceedings, calculated on the ordinary basis, because the Plaintiff's application was for his own benefit, he was not a disinterested applicant, and principles of costs in adversarial litigation apply. To the extent of any shortfall between costs recovered from the Plaintiff and the first Defendant's costs calculated on the indemnity basis, that difference is to be paid out of the first Defendant's estate.

Jurisdiction
Australia
Judgment Date
12 August 2011
Procedural Posture
Application for Statutory Will / Costs Determination
Outcome
Plaintiff to bear first Defendant's costs, costs on ordinary basis; difference between ordinary and indemnity basis costs to be paid out of first Defendant's estate; no order as to costs of second and third Defendants; Exhibits to be dealt with in accordance with UCPR.
Legal Topics
['statutory Wills' 'costs' 'discretion as to Costs' 'estate Administration']
['probate' 'succession' 'civil Procedure'] ['statutory Wills' 'costs' 'discretion as to Costs' 'estate Administration']

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Procedural Posture

Application for Statutory Will / Costs Determination

Legal Issues

  1. 1 ['Who should bear the burden of costs in an unsuccessful statutory will application' 'Application of costs principles in probate and statutory will proceedings']

Ratio Decidendi

The unsuccessful Plaintiff should bear the burden of the first Defendant's costs of the proceedings, calculated on the ordinary basis, because the Plaintiff's application was for his own benefit, he was not a disinterested applicant, and principles of costs in adversarial litigation apply. To the extent of any shortfall between costs recovered from the Plaintiff and the first Defendant's costs calculated on the indemnity basis, that difference is to be paid out of the first Defendant's estate.

Court Disposition

Plaintiff to bear first Defendant's costs, costs on ordinary basis; difference between ordinary and indemnity basis costs to be paid out of first Defendant's estate; no order as to costs of second and third Defendants; Exhibits to be dealt with in accordance with UCPR.

Orders

  • ["Plaintiff to bear first Defendant's costs, calculated on the ordinary basis." "Difference between the costs recovered from Plaintiff and first Defendant's costs on indemnity basis to be paid out of first Defendant's estate." 'No order as to the costs of second and third Defendants.' 'Exhibits be dealt with in...