Carter v Brine (No 2)

The case of Carter v Brine (No 2) was heard by the Supreme Court of New South Wales. The dispute between the parties involved the costs of the executors of an estate, as well as the general rule of costs following the event. The executors sought to have their costs borne by a fund, while the opposing party argued that the costs should be paid from the estate.

The court was required to determine whether the executors' costs should be borne by the estate, or if they should be paid out of a fund. Additionally, the court needed to decide if the costs of action were to be borne by the parties or the estate.

The court found that the costs of the executors on an indemnity basis should be borne by the estate. The court acknowledged that this would entail that the Brines would bear these costs, but this was offset by the fact that Ms Carter would bear the court filing and trial fees. The court held that there should be no order as to the costs of action as between Ms Carter and the Brines, as the costs of action of the executors should be paid by the estate on an indemnity basis. The court reasoned that the costs of issues should not be allowed out of a fund unless there are exceptional circumstances.

The court concluded that the executors' costs should be paid by the estate on an indemnity basis. This decision reflects the principle that costs should generally follow the event, and that the costs of issues should not be allowed out of a fund unless there are exceptional circumstances.