NSW Caselaw
New South Wales Supreme Court
CITATION : King v Hudson [2009] NSWSC 1500
HEARING DATE(S) : 8 October 2009
JUDGMENT DATE : 16 October 2009
JURISDICTION : Equity Division Probate List
JUDGMENT OF : Ward J
Cross-claim dismissed. DECISION : Order that the costs of the plaintiff of the proceedings and the cross-claim be paid out of the estate of the deceased on the indemnity basis. Order the defendant's costs on the s18A application in the proceedings be paid out of the estate on the party/party basis.
CATCHWORDS : COSTS - consideration of exceptions in probate litigation to general principle that costs follow the event - whether the deceased could be said to have been the "cause" of the litigation where testamentary capacity was in issue - whether there was such an overlap between the issue of testamentary intention and the issue as to testamentary nature of the documents to give rise to conclusion that second of exceptions in Shorter v Hodges ought not to apply - costs orders made as noted above
LEGISLATION CITED : Wills Probate & Administration Act 1898
In The Will of Millar [1908] VLR 682 Middlebrook v Middlebrook (1982) 36 ALJR 216 Orton v Smith (1873) LR 3 P & D 23 CASES CITED : Perpetual Trustee Company Limited v Baker [1999] NSWCA 244 Re Estate late Hazel Ruby Grounds, Page v Sudawaie [2005] NSWSC 1311 Re Estate of Hodges (deceased); Shorter v Hodges (1988) 14 NSWLR 698 Shorten v Shorten [2001] NSWSC 263
Peter James King (First Plaintiff) PARTIES : Jennifer Jane King (Second Plaintiff) Judith Hudson (Defendant)
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