Re Will of Jane [No 2] [2011] NSWSC 883

Supreme Court New South Wales

Medium Neutral Citation: Re Will of Jane [No 2] [2011] NSWSC 883 Hearing dates: 12 August 2011 Decision date: 12 August 2011 Jurisdiction: Equity Division - Probate List Before: Hallen AsJ Decision: Order that the Plaintiff should bear the burden of the first Defendant's costs of the proceedings, such costs to be calculated on the ordinary basis. To the extent there is a difference between the costs recovered from the Plaintiff and the first Defendant's costs calculated on the indemnity basis, that difference should be paid out of the first Defendant's estate. There will be no order as to the costs of the second and third Defendants. Order that the Exhibits be dealt with in accordance with the UCPR. Catchwords: Unsuccessful application by Plaintiff for the making of a statutory will for the first Defendant under s 18 and for leave under s 19(1) of the Succession Act 2006 - Leave refused - Costs argument Legislation Cited: Civil Procedure Act 2005 Succession Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Australiawide Airlines Limited t/as Regional Express v Aspirion Pty Limited [2006] NSWCA 365 Boulton v Sanders (No 2) [2003] VSC 409 Boulton v Sanders [2004] VSCA 112; (2004) 9 VR 495 Fairtlough v Fairtlough (1839) 1 Milw 36 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 Hill v Hill [2001] VSC 135 Hodges, Re; Shorter v Hodges (1988) 14 NSWLR 698 Hoffmann v Waters [2007] SASC 273; (2007) 98 SASR 500 Incapable Person D, In re an [1983] 2 NSWLR 590 Keane, Re; Mace v Malone (No. 2) [2011] QSC 98 Snelgrove v Swindells [2007] NSWSC 868 Will of Jane, Re [2011] NSWSC 624 Texts Cited: Miller's Probate Practice (Maxwell: 1900 Ed) Category: Principal judgment Parties: Plaintiff "Jane" (first Defendant) Second Defendant Third Defendant Representation: Counsel: Plaintiff appeared in person Mr L Ellison SC (first Defendant) Second and third Defendants excused from attendance on costs application Solicitors: Plaintiff appeared in person NSW Trustee & Guardian (first Defendant) File Number(s): 2010/381344