Ball v Saint relates to an application for leave to apply for security for costs. The plaintiffs in the main proceedings seek probate in solemn form of the deceased’s final will. The first defendant alleges that the final will is invalid on the grounds of a lack of testamentary capacity and or undue influence.
The application for leave to apply for security for costs was not granted. That said Ball v Saint highlights the complex nature of costs in estate matters, the relevant considerations and, more importantly, the practical realities of estate matters that commonly pit related parties against each other where no party can be certain as to the outcome, other than that costs will be borne by one or more parties.
The plaintiffs were at somewhat of a disadvantage in the proceedings as the close of pleadings date had been passed. This meant that they faced the need to:
“surmount the three formidable hurdles” of showing that doing so would be in the interests of justice, would not significantly prejudice other parties, nor cause significant delay…”
The defendant’s position was that the “jurisdiction to order security for costs against a defendant/counterclaim-plaintiff does not exist where the subject matter of the counterclaim is so inextricably mixed with the subject matter of the plaintiffs’ claim that the counterclaim must necessarily succeed if the plaintiffs’ claim fails.”
Robinson J was of the view that “it would be in the interests of justice for me to assess the merits of the substantive claims part way through trial even on a preliminary or indicative basis.”
The end result being that while security for costs was not granted, it may well be that winning a battle is one thing, but winning the war is another.
References:
- Ball v Saint [2022] NZHC 3607
- Rose v Epstein [1974] 2 All ER 1065
- Elders Pastoral Ltd v Marr (1987) 2 PRNZ 383
Matters of Trust 
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