The Estate of Bourke [2024] NSWSC 280

Supreme Court New South Wales

Medium Neutral Citation: The Estate of Bourke [2024] NSWSC 280 Hearing dates: 2 February 2024, 1 March 2024 Date of orders: 22 March 2024 Decision date: 22 March 2024 Jurisdiction: Equity - Probate List Before: Slattery J Decision: There will be no order for the costs of the plaintiff's notice of motion filed on 23 January 2024 and the plaintiff will not be entitled to be indemnified out of the estate for his costs of the motion. Catchwords: COSTS – party/party – exercise of costs discretion – contested probate suit – plaintiff is the executor of an estate – final orders made by consent in September 2023 – plaintiff's notice of motion of January 2024 sought to vary the final orders – plaintiff's January 2024 motion is resolved by agreement except as to the costs of the motion – the Court foreshadows the making of orders that the contest about the costs of the motion be capped at a maximum of $5,000 – which party should bear the costs of motion – application of Lai Qin principles – whether one party was almost certain to have succeeded, if the matter had been fully tried – whether one party has conducted itself unreasonably – whether the plaintiff should be entitled to indemnify himself out of the estate for his costs of the contest and any liability for costs he bears. Legislation Cited: Uniform Civil Procedure Rules 2005, rr 31.46, 36.15, 36.16, 36.17 Civil Procedure Act 2005, s 98(4)(c) Cases Cited: Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 Dixon v Dixon (No. 2) [2022] NSWSC 944 Re Minister for Immigration and Ethnic Affairs v Lai Qin (1997) 186 CLR 622 Category: Consequential orders Parties: Plaintiff: Paul Martin Bourke Defendant: Stephanie Frances Bourke Representation: Counsel: Plaintiff: I Hoskinson Defendant: C. Birtles