Nielsen J

10.28: Definition of “party”
10.33: Court considerations in making costs award

Case Summary

Following a Trial which was held to resolve a number of issues arising out of Applications relating to estate litigation, Justice Nielsen considered whether elevated Costs should be awarded as against the son of the deceased for his conduct during the proceedings.

Nielsen J. directed that the issue of Costs should be dealt with at a later date, but provided the parties with the principles relating to Costs. Nielsen J. noted that, generally speaking, the Rules and principles governing civil litigation apply to estate litigation, including with respect to Costs, and the successful party is therefore presumptively entitled to their Costs. His Lordship noted that the Court has wide discretion with respect to Costs, including whether to award or to refuse a Costs award in estate litigation. In particular, His Lordship noted that Costs may be denied to a successful party or be awarded on an enhanced basis against an unsuccessful party who has engaged in litigation misconduct. Finally, Nielsen J. noted that Rule 10.28 provides that any person participating in proceedings is a “party” and may be made subject to a Costs award. In this case, that included the son, even though he had filed no Applications himself in the Action.

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