Priestley v Priestley (No 2)

This case concerned an appeal from orders made in the Equity Division of the Supreme Court of New South Wales. The plaintiff, the son of the deceased, had successfully sued the estate of his father, Gordon Priestley, to recover his entitlement to real estate and a share of a water access licence that had been devised under the father's will to the son's mother. The mother was also the executrix of the father's estate. The central dispute revolved around whether the costs incurred by the executrix, including costs payable to the plaintiff, should be paid out of the deceased's estate, and whether the usual rule that costs follow the event was displaced by the "probate exception" in these adversarial proceedings.

The court was required to determine whether the executrix, as the defendant in the proceedings, was entitled to have her costs, including those payable to the successful plaintiff, paid out of the deceased's estate. This involved considering whether the nature of the proceedings, which were found to be adversarial rather than contentious probate proceedings, justified a departure from the general rule that costs follow the event. The court also had to consider the application of the probate exception, which typically allows for the costs of all parties in contentious probate matters to be paid out of the estate.

The court allowed the appeal, setting aside the previous judgments and orders. It declared that the defendant held the deceased's interest in the specified land and water access licence on trust for the plaintiff absolutely. The court ordered the defendant to transfer the land and the water licence to the plaintiff within seven days. The court also ordered that the defendant pay the plaintiff's costs of the proceedings. Crucially, the court ordered that the respondent executrix's costs of both the first instance proceedings and the appeal, including the costs she was ordered to pay the plaintiff, be paid from the Estate of the Late Gordon Wedlock Priestley on an indemnity basis. The respondent was also granted a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled.