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Costs in Estate Litigation – Recent Articles – Estate Lawyers Melbourne

In litigation, costs generally follow the event and since 1 April 2013 are awarded on the following bases:-

  1. Standard Basis; or
  2. Indemnity basis; or
  3. Such other basis as the Court may direct.

Section 97 of the Administration and Probate Act (1958) outlines how the Court should approach Costs in Part IV Proceedings.

Costs have long been a thorny issue in Estate Litigation.The implications of costs orders for potential litigants in this jurisdiction are considerable, particularly in light of recent judgments.

Bowyer v Wood (2007) 99 SASR 190 opened the door for Courts to award costs to an unsuccessful Plaintiff if the application was made on a moral claim or obligation. The recent trend, however, portends a shift away from this assumption.

In IMO Moerth (No 2) [2011] VSC 275, Gardiner AsJ stated that ‘in my view there is no basis for contending in this State that as a starting point…an unsuccessful Plaintiff should be awarded costs out of the estate.’

As a general proposition, it can be said that an unsuccessful litigant is unlikely to have his or her costs paid out of the Estate.

Whether an unsuccessful Plaintiff will be ordered to pay the Costs of the Estate is a slightly more vexed question. s 97 (7) of the Administration and Probate Act (1958) states:-

‘if the Court is satisfied that an application for an order under Section 91 (a Part IV Claim) has been made frivolously, vexatiously or with no reasonable prospects of success, the Court may order the costs of the application to be made against the applicant.’

This section was considered by Byrne J in Re Bull, deceased (No 2) [2006] vsc 226. Byrne J deemed that costs should not be ordered against a Plaintiff because the application failed unless the unsuccessful Plaintiff brought his or her claim frivolously, vexatiously or with no reasonable prospects of success.

It should be stated that the Court has a broad discretion in relation to Costs in this jurisdiction

Author Estate Lawyers

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