Mackinlay v Holliday (No 2) - [2023] NSWSC 1024

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Mackinlay v Holliday (No 2) [2023] NSWSC 1024
Hearing dates: On the papers
Date of orders: 28 August 2023
Decision date: 28 August 2023
Jurisdiction: Equity
Before: Darke J
Decision:
Orders made for the plaintiff/cross-defendant to pay 50% of the defendant/cross-claimant’s costs (other than the cost of the costs application), and for the defendant/cross-claimant to be indemnified out of the assets of the deceased’s estate to the extent he does not recover his costs from the plaintiff/cross-defendant.

Catchwords:
COSTS - contested probate – small estate - defendant/cross-claimant successful in obtaining a grant of probate in respect of a will and a codicil to the will – whether plaintiff/cross-defendant engaged in an abuse of process such as to warrant an order for indemnity costs – no abuse of process established – whether appropriate to depart from the usual position that costs follow the event - where circumstances existed that might reasonably call for an investigation into the validity of the codicil – where dispute was largely a contest over who would have control over the estate - appropriate in all the circumstances to order that the plaintiff/cross-defendant pay 50% of the costs of the defendant/cross-claimant – order made that defendant/cross-claimant is entitled to be indemnified out of the assets of the estate to the extent he does not recover his costs from the plaintiff/cross-defendant

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 98.

Cases Cited:
Mackinlay v Holliday [2023] NSWSC 949
Shorten v Shorten (No 2) [2003] NSWCA 60
Williams v Spautz (1992) 174 CLR 509

Category: Costs
Parties: Derek Mackinlay (Plaintiff/Cross-Defendant)
Brian Holliday (Defendant/Cross-Claimant)
Representation:
Counsel:
Mrs K J Young (Plaintiff/Cross-Defendant)
Mr D C Price (Defendant/Cross-Claimant)
Solicitors:
Dormer Stanhope (Plaintiff/Cross-Defendant)
Toomey Pegg Lawyers (Defendant/Cross-Claimant)

File Number(s): 2022/0032172
Publication restriction: None

JUDGMENT

These proceedings concern the estate of the late Roderick Mackinlay (“the deceased”), who died on 19 October 2020 at the age of 91. The deceased left a will dated 5 April 2007, and a codicil to the will dated 22 October 2018. The central issue in the proceedings concerned the validity of the codicil.
The codicil, if valid, would operate to amend the 2007 will in various respects, including by naming the defendant/cross-claimant, Mr Brian Holliday, as the sole executor of the estate. Shortly after the death of the deceased, Mr Holliday gave notice of an intention to seek a grant of probate in respect of the will and the codicil. The plaintiff/cross-defendant, Mr Derek Mackinlay, resisted the making of such a grant, by the filing of a series of caveats. In February 2022, Mr Mackinlay commenced the proceedings by the filing of a Statement of Claim, by which he sought a grant of probate in respect of the 2007 will. He was named in that will as one of the executors of the estate. Mr Holliday thereafter pursued his application by means of a Cross-Claim.
The matter was heard over five days between 24 and 28 July…

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.

Continue reading Mackinlay v Holliday (No 2)

Details

AGLC: Mackinlay v Holliday (No 2) [2023] NSWSC 1024
Case: [2023] NSWSC 1024
Decision Date: 28 August 2023

CaseChat Overview and Summary

In the case of Mackinlay v Holliday (No 2), the primary dispute involved the validity of a codicil to a will and the right to control the estate of the deceased. The defendant, Holliday, sought a grant of probate in respect of the will and the codicil, while the plaintiff, Mackinlay, contested the validity of the codicil and sought to prevent the defendant from obtaining the grant. The case was heard in the Supreme Court of New South Wales.

The key legal issues before the court were whether the plaintiff had engaged in an abuse of process, which would warrant an order for indemnity costs against them, and whether it was appropriate to depart from the usual position that costs follow the event. The court had to consider whether the circumstances of the case warranted an investigation into the validity of the codicil, and whether the dispute was largely a contest over who would have control over the estate.

The court found that while there was no abuse of process by the plaintiff, the circumstances of the case did warrant a departure from the usual rule that costs follow the event. Given that there were circumstances that might reasonably call for an investigation into the validity of the codicil, and that the dispute was largely a contest over control of the estate, it was appropriate in all the circumstances to order that the plaintiff pay 50% of the defendant's costs. The court also ordered that the defendant was entitled to be indemnified out of the assets of the estate to the extent that he did not recover his costs from the plaintiff.

The final orders of the court were that the plaintiff pay 50% of the defendant's costs and that the defendant was entitled to be indemnified out of the assets of the estate to the extent that he did not recover his costs from the plaintiff. The court's decision was based on the specific circumstances of the case and the need to ensure that the dispute over the validity of the codicil was properly investigated.

Orders