Lavery-Fenelon v Nicholas

Lavery-Fenelon v Nicholas concerned an application for leave to appeal a decision of a primary judge who had dismissed separate proceedings commenced by the applicant and made a costs order against the applicant. The primary judge had also made notations in the orders regarding outstanding issues with the deceased's estate. The appeal sought to challenge both the dismissal of the proceedings and the costs order, as well as the notations made in the orders.

The Court of Appeal was required to determine whether leave to appeal should be granted in respect of the dismissal of the applicant's separate proceedings, the costs order made against the applicant, and the notations made in the primary judge's orders.

Basten and Meagher JJA dismissed the application for leave to appeal. Their Honours ordered that the applicant pay the respondents' costs of the proceedings in the Court of Appeal on an ordinary basis. Furthermore, they ordered that the difference between the costs recovered by the respondents from the applicant and the respondents' costs of the proceedings, assessed on an indemnity basis, was to be paid out of the deceased's estate.