Mackinlay v Holliday (No 2) [2023] NSWSC 1024

Supreme Court New South Wales

Medium Neutral Citation: Mackinlay v Holliday (No 2) [2023] NSWSC 1024 Hearing dates: On the papers Date of orders: 28 August 2023 Decision date: 28 August 2023 Jurisdiction: Equity Before: Darke J Decision: Orders made for the plaintiff/cross-defendant to pay 50% of the defendant/cross-claimant's costs (other than the cost of the costs application), and for the defendant/cross-claimant to be indemnified out of the assets of the deceased's estate to the extent he does not recover his costs from the plaintiff/cross-defendant. Catchwords: COSTS - contested probate – small estate - defendant/cross-claimant successful in obtaining a grant of probate in respect of a will and a codicil to the will – whether plaintiff/cross-defendant engaged in an abuse of process such as to warrant an order for indemnity costs – no abuse of process established – whether appropriate to depart from the usual position that costs follow the event - where circumstances existed that might reasonably call for an investigation into the validity of the codicil – where dispute was largely a contest over who would have control over the estate - appropriate in all the circumstances to order that the plaintiff/cross-defendant pay 50% of the costs of the defendant/cross-claimant – order made that defendant/cross-claimant is entitled to be indemnified out of the assets of the estate to the extent he does not recover his costs from the plaintiff/cross-defendant Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 98. Cases Cited: Mackinlay v Holliday [2023] NSWSC 949 Shorten v Shorten (No 2) [2003] NSWCA 60 Williams v Spautz (1992) 174 CLR 509 Category: Costs Parties: Derek Mackinlay (Plaintiff/Cross-Defendant) Brian Holliday (Defendant/Cross-Claimant) Representation: Counsel: Mrs K J Young (Plaintiff/Cross-Defendant) Mr D C Price (Defendant/Cross-Claimant)