Gray v Hart; Estate of Harris (No. 2) [2012] NSWSC 1562

Supreme Court New South Wales

Medium Neutral Citation: Gray v Hart; Estate of Harris (No. 2) [2012] NSWSC 1562 Hearing dates: 10 December 2012 Decision date: 11 December 2012 Jurisdiction: Equity Division - Probate List Before: White J Decision: Refer to paras [49] and [50] of judgment. Catchwords: COSTS - WILLS, PROBATE AND ADMINISTRATION - exceptions in probate litigation to ordinary rule that costs follow the event - competing reasons of policy which affect how discretion to award costs should be exercised in probate litigation - deceased was the cause of litigation and so prima facie costs of unsuccessful defendants should come out of estate - adjustment necessary in relation to first and second defendants because they raised issues that do not fall within rationale for ordering unsuccessful parties' costs to be paid out of estate in probate litigation and because those issues were raised unreasonably - half of first and second defendants' costs to be paid out of estate Cases Cited: Estate of Harris; Gray v Hart [2010] NSWSC 55 Mitchell v Gard (1863) 3 Sw & Tr 275 at 277; 164 ER 1280 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Shorten v Shorten (No. 2) [2003] NSWCA 60 Redroff v Miegoch (Supreme Court of New South Wales, Santow J, 22 April 1996, unreported, BC9601491) Moyle v Moyle (Supreme Court of New South Wales, Santow J, 18 June 1998, unreported) Hubbard v Mason (Supreme Court of New South Wales, Santow J, 8 July 1998, unreported, BC9803106) Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244 The Estate of Grounds; re Page v Sedawie [2005] NSWSC 1311 Davies v Gregory (1873) LR 3 P&D 28 Johnston v Public Trustee (1929) 24 Tas LR 71 In the Will of Millar [1908] VLR 682 Kenny v Wilson (1911) 11 SR(NSW) 460 Levy v Leo (1909) 25 TLR 717 and Oldcorn v Tenniswood (1909) 25 TLR 825 Mead v Watson [2005] NSWCA 133; (2005) 23 ACLC 718 Texts Cited: Tristram and Coote's Probate Practice, Butterworths LexisNexis, 29th ed Williams, Mortimer and Sunnucks, Executors, Administrators and Probate, 18th ed Category: Costs Parties: Beatrice Anne Gray (Plaintiff) Coralie Anne Hart (1st Defendant) Richard Bernard Spinak (2nd Defendant) Warwick Robert Mertell (3rd Defendant) Philip Fletcher Mertell (4th Defendant) Anne Elizabeth Nickolls (5th Defendant) Representation: Counsel: C Harris SC (Plaintiff) L Ellison SC with M Pringle (1st & 2nd Defendants) C Vindin (3rd - 5th Defendants) Solicitors: Teece Hodgson Ward Solicitors (Plaintiff) Pigott Stinson Lawyers (1st & 2nd Defendants) Heckenberg Lawyers (3rd - 5th Defendants) File Number(s): 2009/319943