Hornsby v Hornsby [No 3]

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.