Whitecross and Reilly (No 3)

In *Whitecross and Reilly (No 3)*, the Supreme Court of Victoria was asked to determine the appropriate costs orders following earlier proceedings between the parties. The dispute concerned the administration of a deceased’s estate, with the applicants, Whitecross and Reilly, seeking directions from the court regarding the distribution of assets and the conduct of the executor.

The primary legal issue before Cronin J was whether the applicants, who had been successful in obtaining directions from the court, should be awarded their costs out of the estate, or whether the costs should be borne by the unsuccessful respondents. The court was required to consider the principles governing costs in estate litigation, particularly where beneficiaries are in dispute with an executor or amongst themselves.

Cronin J reasoned that the general rule that costs follow the event should be applied, but with an important qualification in estate matters. His Honour noted that where litigation arises from the proper administration of an estate, and the executor has acted reasonably, costs may be ordered out of the estate. However, in this instance, the applicants had been successful in establishing that the executor had acted improperly, necessitating the court’s intervention. Consequently, the court ordered that the applicants’ costs be paid out of the estate, and that the respondents bear their own costs.