KUENEN -v- ROBERT LESLIE HORTIN AND ADRIAN MARK BICKFORD as Executor of the Estate of LATE LESLIE MERVYN HORTIN [2024] WASC 152 (3 May 2024)

1. In my view, these proceedings took the form of adversarial proceedings. There are two particular factors that indicate this. First, the approach that was taken in the proceedings and the fact that the gift under the will was distributed in October 2021, and second, the delay in not commencing these proceedings until June 2023. Although I would not characterise the arguments advanced by the plaintiffs to be frivolous or unarguable, I do not consider their case was strong.
2. For these reasons, it is my view the defendants were the successful party and are entitled to payment of their costs.
3. This raises the question as to who should pay those costs: the plaintiffs personally or the estate. The evidence before the court is that there is approximately $240,000 currently remaining in the estate and that the plaintiffs are five of the six residuary beneficiaries.
4. Given these matters, in this case I am persuaded that it would be appropriate for the defendants' costs to be paid by the estate. The effect of this order will be to visit the majority of the plaintiffs' costs on five of the six residuary beneficiaries.
5. However, I do not consider that any order should be made as to the costs of the plaintiffs in the circumstances of this case. The plaintiffs should bear their own costs of the proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Kuenen v Hortin and Bickford as executors of the estate of the late Leslie Mervyn Hortin [2024] WASC 152.

[2] In Re Buckton; Buckton v Buckton [1907] UKLawRpCh 98; [1907] 2 Ch 406.