Hornsby v Hornsby [No 3]

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HORNSBY -v- HORNSBY [No 3] [2015] WASC 159



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2015] WASC 159
Case No:CIV:3045/201012 FEBRUARY 2015
Coram:EM HEENAN J7/05/15
18Judgment Part:1 of 1
Result: Plaintiff to recover costs of the action and the counterclaim to be taxed on an indemnity basis with liberty for the taxing officer to enlarge any applicable item in any relevant scale of costs, such costs to be paid out of the estate of the deceased
No order for costs in favour of or against the defendant save for any orders for costs already made on interlocutory applications
Liberty to apply, in the absence of agreement, in relation to any costs of interlocutory proceedings reserved
B
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Parties:SHARON JUDITH HORNSBY
CRAIG LEONARD HORNSBY

Catchwords:

Wills
Applications for probate in solemn form
Costs
Costs of executor to prove will and oppose counterclaim propounding other wills
Costs of failed counterclaim to propound earlier will
Doctrine of suspicious circumstances
Effect on costs
Indemnity for executor

Legislation:

Family Provision Act 1972 (WA)
Legal Profession Act 2008 (WA)
Rules of the Supreme Court 1971 (WA), O 66 r 9

Case References:

Becker v Public Trustee of NSW [2006] NSWSC 1146
Clay v Karlson [2001] WASC 141
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Crawley Investments v Elman [2014] WASC 233
Daniels v Hall (As Administrator of the Estate of Arnold Edward Daniels) [No 2] [2014] WASC 272
Hornsby v Hornsby [No 2] [2014] WASC 434
Marsh v Baxter [2014] WASC 187 (S)
Middlebrook v Middlebrook (1962) 36 ALJR 216
Mitchel v Gard (1863) 164 ER 1280
Oreski v Ikac [2007] WASC 195 (S)
Re Egel [1939] SASR 477
Re Green deceased; Lloyd v Green [1969] WAR 67
Re Herbert (1990) 101 FLR 279
Rowland v Portus (1906) 6 SR (NSW) 74
Spiers v English [1907] P 122
Wilson v Jones [1911] HCA 11; (1911) 12 CLR 394


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : HORNSBY -v- HORNSBY [No 3] [2015] WASC 159 CORAM : EM HEENAN J HEARD : 12 FEBRUARY 2015 DELIVERED : 7 MAY 2015 FILE NO/S : CIV 3045 of 2010 BETWEEN : SHARON JUDITH HORNSBY
    Plaintiff

    AND

    CRAIG LEONARD HORNSBY
    Defendant

Catchwords:

Wills - Applications for probate in solemn form - Costs - Costs of executor to prove will and oppose counterclaim propounding other wills - Costs of failed counterclaim to propound earlier will - Doctrine of suspicious circumstances - Effect on costs - Indemnity for executor

Legislation:

Family Provision Act 1972 (WA)


Legal Profession Act 2008 (WA)
Rules of the Supreme Court 1971 (WA),O 66 r 9

Result:

Plaintiff to recover costs of the action and the counterclaim to be taxed on an indemnity basis with liberty for the taxing officer to enlarge any applicable item in any relevant scale of costs, such costs to be paid out of the estate of the deceased



No order…
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Details
Case
[2015] WASC 159
Decision Date

CaseChat Overview and Summary

The case of Hornsby v Hornsby [No 3] involved the plaintiff, seeking probate in solemn form of a will, and the defendant, who contested the validity of that will by propounding an earlier will. The dispute arose before the Supreme Court of New South Wales, which had to determine several key legal issues surrounding the costs incurred during the litigation.

The central issues for the court included the circumstances under which costs would be awarded to the plaintiff for proving the will and opposing the counterclaim, as well as the costs incurred by the defendant in propounding the earlier will. The court had to consider whether the doctrine of suspicious circumstances applied, which would affect the costs order. Specifically, the court needed to determine if the plaintiff should be indemnified for the costs of proving the will and opposing the counterclaim, and whether the defendant's failed counterclaim should impact the costs order.

The court held that the plaintiff was entitled to recover the costs of the action and the counterclaim. The costs of the counterclaim were to be taxed on an indemnity basis, with the taxing officer having the discretion to adjust any relevant cost items. The court also ruled that the plaintiff should be indemnified for these costs, which were to be paid from the estate of the deceased. The court declined to make any order for costs in favour of or against the defendant except for those already ordered in interlocutory applications. The court granted liberty to apply for costs of interlocutory proceedings in the absence of agreement.

In summary, the court ruled that the plaintiff would recover the costs of the action and the counterclaim, which would be taxed on an indemnity basis. The plaintiff was also to be indemnified for these costs, paid from the deceased's estate, and the defendant was not to be ordered to pay any further costs except those already determined in interlocutory applications. The court also allowed for applications regarding the costs of interlocutory proceedings if no agreement was reached.

Orders

Orders of the court

Plaintiff to recover costs of the action and the counterclaim to be taxed on an indemnity basis with liberty for the taxing officer to enlarge any applicable item in any relevant scale of costs, such costs to be paid out of the estate of the deceased

No order for costs in favour of or against the defendant save for any orders for costs already made on interlocutory applications

Liberty to apply, in the absence of agreement, in relation to any costs of interlocutory proceedings reserved

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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