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

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 159
Case No:	CIV:3045/2010	Heard:	12 FEBRUARY 2015
Coram:	EM HEENAN J	Delivered:	7/05/15
No of pages:	18	Judgment 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
Category:	B
PDF Version

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] WASC 159
Decision Date: 7 MAY 2015

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

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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