Clines v Johnston and Anor (No. 2) [2008] NSWSC 742

New South Wales Supreme Court

CITATION : Clines v Johnston and Anor (No. 2) [2008] NSWSC 742

HEARING DATE(S) : 19 June 2008 JUDGMENT OF : Jagot AJ

EX TEMPORE JUDGMENT DATE : 19 June 2008

CATCHWORDS : COSTS - costs in probate litigation - whether unsuccessful defendants' costs should be paid out of the estate - defendants' costs to lie where they fall

CATEGORY : Consequential orders

CASES CITED : Dawson v Peters (No 2) [2007] NSWSC 1421 Shorter v Hodges [1988] 14 NSWLR 698

Peter James Andrew Clines (Plaintiff) PARTIES : Dorothy Emma Johnston (First Defendant) Neil Johnston (Second Defendant)

FILE NUMBER(S) : SC 4395 of 2007

COUNSEL : Mr M S Willmott SC (Plaintiff) Mr D M Flaherty (Defendants)

SOLICITORS : Owen Hodge Lawyers (Plaintiff) Hinde & Ginges Solicitors (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Jagot AJ

19 June 2008

4395 of 2007 PETER JAMES ANDREW CLINES v DOROTHY JOHNSTON & ANOR (NO. 2) JUDGMENT 1 HER HONOUR: The only issue remaining in these proceedings is that of costs. Otherwise the orders that should be made consequential on my principal reasons dated 6 June 2008 (Clines v Johnston and Anor [2008] NSWSC 524) have been agreed.

2 The plaintiff, who was successful in the proceedings, submits that there should be an order that the plaintiff's costs on an indemnity basis be paid out of the estate, but otherwise there should be no order as to costs.

3 The defendants agree with the first part of that order, namely, that the plaintiff should have his costs paid out of the estate on the indemnity basis, but submit that the defendants costs on a party-party basis should also be paid out of the estate.