KJ v SJ (No 2)

In the case of KJ v SJ (No 2), the applicant, KJ, sought a declaration and orders under section 86 of the Trustee and Guardian Act 2009 (NSW) against the respondent, SJ, who is KJ's former partner and the trustee of her estate. The dispute revolved around the distribution of KJ's estate following her death and whether SJ had acted within the scope of his powers as a trustee. The matter was heard in the Supreme Court of New South Wales, Equity Division.

The central legal issue before the court was whether it was appropriate to depart from the usual rule of costs in favour of the prevailing party, given that KJ was unsuccessful in her application. The court considered whether KJ's application was reasonably commenced and maintained, the overall conduct of the proceedings, and the contributions made by KJ's financial manager. The court also examined whether the application's conduct was adversarial and the impact of the financial manager's neutral stance and valuable assistance to the court.

The Supreme Court found that KJ's application was reasonably commenced and maintained, and the overall conduct of the proceedings was not adversarial in nature. The court highlighted the financial manager's neutral position and the valuable assistance provided to the court, which influenced its decision. Consequently, the court held that it was appropriate to order that all parties' costs be paid out of the applicant's estate on an indemnity basis, departing from the usual rule of costs in favour of the prevailing party.

No specific orders were made in this summary. However, the court's decision suggests that it is possible for the court to depart from the usual rule of costs in certain circumstances, particularly when the applicant's application was reasonably commenced and maintained, and the overall conduct of the proceedings was not adversarial. The court's decision may have implications for future cases involving similar circumstances and the allocation of costs.