MacKenzie v Osburn & Ors (No 2);Osburn v MacKenzie [2005] NSWSC 786

New South Wales Supreme Court

CITATION : MacKenzie v Osburn & Ors (No 2);Osburn v MacKenzie [2005] NSWSC 786

HEARING DATE(S) : 02/08/05

JUDGMENT DATE : 2 August 2005

JUDGMENT OF : Gzell J

DECISION : Order that the plaintiff's costs be paid by the defendants.

CATCHWORDS : PROCEDURE - Costs - Application to have informal document declared to be a will under s 18A of the Wills, Probate and Administration Act 1898 - Application opposed unsuccessfully - Calderbank offer by plaintiff - Matters requiring investigation justifying rejection of offer - Informal document without residuary estate although all assets disposed of - S 46C(2) of the Wills, Probate and Administration Act 1898 requires debts to be met in the order outlined in Pt 2 of Third Sch - Cl 6 from assets specifically disposed off by will, rateably according to value - Under the informal document the highest valued asset, a house, passed to the successfull plaintiff - An order for her costs out of the estate would require her to bear the lion's share of the order

LEGISLATION CITED : Wills, Probate and Administration Act 1898

Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Oshlack v Richmond River Council (1998) 193 CLR 72 CASES CITED : Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Nobrega v Trustees for the Roman Catholic Church for the Archdiocese of Sydney (No 2) [1999] NSWCA 133 LMI Australia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2003] NSWCA 74

In Matter 105416/04 Carolyn Anne MacKenzie - Plaintiff William Hamilton Osburn - 1st Defendant William John Osburn - 2nd Defendant PARTIES : Alex Willaim Hamilton Osburn - 3rd Defendant