Gray v Hart; Estate of Harris (No 2)

In the Federal Court, Gray commenced proceedings against Hart, seeking to have a will of Harris declared invalid. Hart was the executor of the will and the first and second defendants were beneficiaries. Gray's claim was unsuccessful, and Hart and the first and second defendants applied for costs against Gray. The first and second defendants raised their own claim against Gray, which was dismissed. The first and second defendants appealed the decision that they pay their own costs. The court had to decide the extent to which the ordinary rule that costs follow the event may be departed from in probate litigation, and the appropriate division of costs between the first and second defendants and Gray.

The court found that the ordinary rule that costs follow the event may be departed from in probate litigation, but only in exceptional circumstances. The court held that the deceased was the cause of the litigation, and so the prima facie rule was that the costs of the unsuccessful party should come out of the estate. The court also found that the first and second defendants had raised issues that did not fall within the rationale for ordering unsuccessful parties' costs to be paid out of the estate in probate litigation, and that those issues were raised unreasonably. The court held that the first and second defendants should pay half of their costs out of the estate.

The court held that the first and second defendants should pay half of their costs out of the estate, and that the remainder should be paid by Gray. The court held that the first and second defendants' costs should be divided equally between them. The court also held that the costs of the appeal should be divided between Gray and the first and second defendants, with Gray to pay one-third of the costs and the first and second defendants to pay two-thirds.