Starr v Miller; Starr v Miller (No 2) [2021] NSWSC 685

Starr v Miller; Starr v Miller (No 2) [2021] NSWSC 685

The Plaintiff’s claim in the probate proceedings was unsuccessful, was primarily self-interested and adversarial, and neither the deceased’s conduct nor the circumstances sufficiently justified departing from the usual rule that costs follow the event. The Plaintiff did not establish entitlement to have her costs paid out of the estate. The Defendants’ costs are to be paid (or retained) out of the estate on the indemnity basis. The appropriate order is that there be no order as to the Plaintiff’s costs, with the intent she bear her own costs, and that she pay the Defendants’ costs of the application for costs.

Parties
Plaintiff: Susan Maree Starr; First Defendant & Cross Claimant: Margo Anne Miller; Second Defendant: David Patrick Brough; Third Defendant: Bradford Frederick McInnes Stuart
Jurisdiction
Australia
Judgment Date
16 June 2021
Procedural Posture
Probate and Family Provision (heard Together) / Costs Judgment After Final Determination of Substantive Issues
Outcome
No order as to the Plaintiff’s costs (she bears her own costs); Defendants’ costs on indemnity basis paid or retained from estate; Plaintiff to pay Defendants’ costs of the costs application.
Legal Topics
Costs, Probate Proceedings, Family Provision
Equity Succession Costs Probate Proceedings Family Provision

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Parties

Susan Maree Starr

Plaintiff

Margo Anne Miller

First Defendant & Cross Claimant

David Patrick Brough

Second Defendant

Bradford Frederick McInnes Stuart

Third Defendant

Procedural Posture

Probate and Family Provision (heard Together) / Costs Judgment After Final Determination of Substantive Issues

Legal Issues

  1. 1 Whether the unsuccessful plaintiff in probate proceedings should have her costs paid out of the estate and, if so, whether on an indemnity or ordinary basis; Whether the defendants’ costs should be paid out of the estate on an indemnity basis; Application of cost principles in probate/family provision litigation, including exceptions to the usual rule that costs follow the event

Ratio Decidendi

The Plaintiff’s claim in the probate proceedings was unsuccessful, was primarily self-interested and adversarial, and neither the deceased’s conduct nor the circumstances sufficiently justified departing from the usual rule that costs follow the event. The Plaintiff did not establish entitlement to have her costs paid out of the estate. The Defendants’ costs are to be paid (or retained) out of the estate on the indemnity basis. The appropriate order is that there be no order as to the Plaintiff’s costs, with the intent she bear her own costs, and that she pay the Defendants’ costs of the application for costs.

Court Disposition

No order as to the Plaintiff’s costs (she bears her own costs); Defendants’ costs on indemnity basis paid or retained from estate; Plaintiff to pay Defendants’ costs of the costs application.

Orders

  • Makes no order as to the Plaintiff’s costs to the intent that she is to bear her own costs of the proceedings.
  • Orders that the Defendant's costs, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased.