Mackinlay v Holliday (No 2)

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.