Clines v Johnston and Anor (No. 2)

The case involved the estate of the deceased, Clifton William Clines, with his widow, Barbara, as the executor. The dispute arose from a claim by the deceased's son, John, seeking an order for the executor to provide an accounting of the estate and a distribution of the estate assets. The matter was heard in the Supreme Court of New South Wales. The defendants, Johnston and another party, sought to recover their legal costs from the estate, arguing that they were entitled to such costs as successful defendants in the proceedings.

The court had to determine whether the unsuccessful defendants were entitled to have their legal costs paid by the estate, and if not, where those costs should lie. The primary legal issue was whether the defendants, as unsuccessful parties in probate litigation, could recover their costs from the estate. The court considered relevant case law and statutory provisions governing costs in probate litigation, particularly the principle that costs should generally lie where they fall.

The court found that the defendants were not entitled to have their costs paid out of the estate. The court emphasised that the general principle in probate litigation is that costs should lie where they fall, and there was no basis to depart from this principle in the circumstances of this case. The court concluded that the defendants' costs should not be paid out of the estate, and the defendants would have to bear their own costs. The court's reasoning was grounded in the statutory provisions and relevant case law, which support the principle that costs should lie where they fall in probate litigation.

In light of the above, the court dismissed the defendants' application for an order that their costs be paid out of the estate. The defendants were ordered to pay their own costs of the proceedings. This decision reinforces the principle that unsuccessful defendants in probate litigation are not entitled to have their costs paid out of the estate, unless there are exceptional circumstances that warrant a departure from the general rule.