Kelly v Perpetual Trustee Co (Ltd) [1963] HCA 23

High Court of Australia Dixon C.J. Taylor and Menzies JJ. Kelly v Perpetual Trustee Co (Ltd) [1963] HCA 23

ORDER Set aside the declaration contained in the order of the Supreme Court dated Thursday, 2nd August 1962, under appeal. In lieu thereof declare that the estate of William Henry Kelly deceased is entitled to one-third of such part of the sum of £184,446 16s. 4d (less so much thereof, if any, as represents proceeds of tin held by the estate of the abovenamed testator, Thomas Hussey Kelly deceased, when the partnership, Sydney Smelting Company, came to an end) as is properly available for distribution among the beneficiaries of the estate of the abovenamed Thomas Hussey Kelly deceased. Set aside the order for costs contained in the said order and in lieu thereof order that the costs of the proceedings in the Supreme Court be paid out of so much of the fund constituted by the payment of the aforesaid £184,446 16s. 4d. as the estate of William Henry Kelly would otherwise be entitled to receive. Let the costs of this appeal and the cross appeals be paid out of the said fund. Subject to the foregoing, confirm so much of the order under appeal as ordered that Daphne May Johnson be and as thereby appointed her to represent for the purposes of the suit the estate of the late William Henry Kelly and as referred to the Deputy Registrar or the Chief Clerk in Equity to tax the costs of the plaintiff of and incidental to the proceedings in the Supreme Court and to tax as between solicitor and client the costs of the defendants and to certify the same respectively and that such costs and expenses when so taxed and certified be retained or paid out of the estate of the testator as aforesaid in manner following, that is to say: the costs and expenses of the plaintiff be retained by it or paid to its solicitors and the costs and expenses of the defendants paid to them respectively or to their respective solicitors.