Alympic v Alympic (No 2)

[2023] SASC 172

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

ALYMPIC v ALYMPIC (No 2)

[2023] SASC 172

Judgment of Auxiliary Judge Norman a Master of the Supreme Court  

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS

Application for costs and disbursements of the proceedings to be paid by the respondent on an indemnity basis or alternative orders for payment on a lump sum without recourse to an indemnity from a deceased estate, including costs and disbursements incurred prior to the issue of proceedings.

Costs of proceedings awarded on an indemnity basis, pre action costs awarded on a standard costs basis, costs assessed in a lump sum.

Uniform Civil Rules 2020 (SA); Supreme Court Act 1935 (SA), referred to.
Fielder v Burgess [2014] SASC 98; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; IB Consulting v Dare Sutton Clarke Pty Ltd [2002] SASC 342; Shanamere Pty Ltd v Litigation Support Services Pty Ltd [2006] SASC 12; Steicke v Pederick & Anor (No 2) [2020] SASCFC 13; Mandeville v Better Lending Pty Ltd & Anor (No 2) [2021] SASCA 61; Cachia v Hanes (1991) 23 NSWLR 304; Ragata Developments Pty Ltd v Westpac Banking Corporation Federal Court of Australia 5 March 1993, unreported; Re Amuso (No 2) [2021] SASC 61; In the Estate of Wenham (No 2) [2023] SASC 135; Societe Anonyme Pecheries Ostendaises v Merchants Marine Insurance Co [1928] 1 KB 750; Ross v Caunters [1980] Ch 297; Frankenburg v Famous Lasky Film Service Ltd [1931] 1 Ch 428; Re Gibson’s Settlement Trusts [1981] 1 Ch 179; National Westminster Bank Plc v Kotonou [2009] EWHC 3309 (Ch); Gee, Re the Estate of [2022] EWHC 1590 (Ch); Mackenzie Real Estate Pty Ltd v Cenna Pty Ltd [2007] SADC 101; State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174; W Win Engineering Pty Ltd v Wiggins [2016] FCA 967; Ardalich v Ardalich District Court, Master Olsson, Reasons delivered 22 June 2021 (unreported); Crossley v South Australia (No 3) [2020] SADC 89; The Corporation Of The City Of Campbelltown v Caltex Petroleum P/L (No 2) [2019] SAERDC 24; Bitzer Australia Pty Ltd v Japp [2014] FCA 1040; Comcare v Labathas & McMahon (1995) 61 FCR 149; Schweppes' Limited v Archer (1934) 34 SR (NSW) 178; Higgins v Nicol (No 2) (1972) 21 FLR 34; Masson Templier & Co v De Fries [1910] 1 KB 535; Viscariello v Macks (No 4) [2022] SASC 30; Leocon Pty Ltd v Angus Clyne Australia Pty Ltd [2022] SADC 104; Gallagher v CSR Ltd No 940164, 31 March 1994, unreported; Smoothpool v Pickering [2001] SASC 131; Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673; Koonara Management Pty Ltd v Rockliff (No 3) [2020] FCA 523; Bayley & Associates Pty Ltd v DBR Australia Pty Ltd [2014] FCA 346; Tamaya Resourtces Ltd (In Liq) v Claymore Capital Pty Ltd (No 2) [2015] FCA 637; Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd (2008) 249 ALR 371; Sparnon v Apand Pty Ltd FCA, von Doussa J, No SG28/94, 4 March 1998, unreported; Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; Cornwall v Rowan (No 4) [2006] SASC 111; Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) [2011] FCA 661; Thompson v Department of Environment and Conservation (No 2) [2011] FCA 970; Charitopoulos v DJH Crowd Management (No 2) [2009] SASC 241, considered.

ALYMPIC v ALYMPIC (No 2)
[2023] SASC 172

Supreme Court Civil: Master Norman

1. This is an application dated 24 March 2023 by Timothy Alexander Alympic, (the applicant) as executor of Estate of his late father Alexander Alympic (the deceased), seeking an order that his costs and disbursements of the proceedings be paid by his sister Natalie Katrina Alympic (the respondent) on an indemnity basis, without recourse to an indemnity of the deceased’s estate. In the alternative, an order is sought that the respondent pay the applicant’s costs of the proceedings on a lump sum basis without recourse to an indemnity for the deceased’s estate. Orders are also sought for payment of the applicant’s costs and disbursements prior to the issuance of proceedings from 2 December 2017 incurred in relation to the respondent’s unauthorised occupation of the estate property to be paid by her on a lump sum basis without recourse to an indemnity from the deceased’s estate.

2. The application relies on Uniform Civil Rules 2020 (UCR), rules 193.1, 194.1 and 194.3 and is supported by the second, third and fourth affidavits of the applicant’s solicitor, Ms Antonia Karagiannis sworn on 24 March 2023, 26 April 2023, and 25 September 2023. The application is opposed by the respondent who has filed an affidavit sworn by herself on 16 May 2023.

3. The application came on for argument before me on 27 September 2023 when Mr M Taylor of counsel appeared for the applicant and Mr J White SC of counsel appeared for the respondent.

   Background

4. The proceedings were commenced on 13 May 2022 supported by affidavits of the applicant sworn on 9 May 2022 and of his solicitor, Ms Karagiannis, sworn on 29 August 2022. An asset of the estate is a property at 28 Robinson Road, Stanley Flat 5453 (“the property”). The will provided that the respondent had the right to live at the property until 1 December 2017, however she continued to live there after that date and the proceedings sought orders that the grant of probate to her and the applicant be revoked and that she be passed over as executor and that he be granted probate as sole executor. In a response filed 11 May 2022 the respondent sought that the application be dismissed, that she be allowed to purchase the property pursuant to the Will of the deceased at such value as agreed between the parties or at a price to be determined by formal valuation, and with the beneficiaries receiving such share of the estate as appropriate. She relied on an affidavit sworn by her on 10 July 2022. At a hearing on 27 September 2022, I heard oral submissions from the parties (the respondent appearing by telephone link). Further submissions were received at a re-convened hearing on 1 December 2022.

5. On 19 January 2023 I published reasons and made orders that the grant of probate made on 15 March 2017 to the applicant and the respondent in relation to the estate of the deceased be revoked; that the respondent be passed over as executor; that there be a grant of probate of the will to the applicant; that the applicant was advised and directed to do all things necessary to transmit the title to the property into his sole name as legal personal representative and to seek vacant possession of the property, and for the removal of a Caveat 13066243 which had been lodged by the respondent on 15 February 2019 over the property. Costs were reserved with liberty to apply.

6. In my reasons, I found that a history had been shown of the respondent being uncooperative and obstructive in respect to the sale of the property. Notwithstanding the provisions in the deceased’s will allowing her to reside at the property for 12 months after his death, she had resided and continued to reside there after that period had expired without paying rent, she had advised that she did not wish to vacate, and she had later written to the beneficiaries informing them that she was not moving out and that they would need to convince a judge at the expense of the estate why she needed to be removed. The situation remained unresolved for a considerable time. Notwithstanding that the respondent offered to purchase the property, subject to finance, she had been unable to provide proof thereof and that matter had not been taken further, and she had also refused to allow real estate agents access to the property. I found that the applicant had had no choice but to issue the proceedings, that he had established a departure by the respondent from her duties as an executor, that a course of conduct by her had frustrated, delayed and prevented the due administration of the estate over several years, and that the position would not be resolved without the intervention of the Court. In these circumstances, the due and proper administration of the estate required the revocation of the grant of probate, a passing over of the respondent, and the appointment of the applicant as executor, and orders were made accordingly.

   Affidavit evidence provided by the applicant in support of the application

7. The second affidavit of Ms Karagiannis referred to the grant of probate in the matter and the orders subsequently made by the Court. As costs had been reserved, the applicant sought that these be determined. She referred to the issue of the proceedings by the applicant on 13 May 2022 and testified as to the solicitors’ charges, counsel fees, and other disbursements incurred during the various phases of those proceedings, including pre-action, the substantive proceedings themselves, and the subsequent present costs application.

8. Ms Karagiannis submitted that the estate and its beneficiaries should not be burdened by the costs incurred in compelling the respondent to comply with her duties at law. As she would be entitled to a share of the estate upon its sale and realisation, an order was sought that any costs order made against her be set off against her interest in the estate.

9. In her third affidavit, Ms Karagiannis exhibited a schedule and provided copies of invoices of the applicant’s solicitors Treloar & Treloar issued from 11 May 2022 to 30 January 2023 and from 23 December 2019 to 21 March 2022 (redacted in relation to privilege in parts). These were in itemised form, setting out the dates of attendance, a description of the professional services rendered, and dollar amounts for each of these. There is a listing of disbursements incurred and their nature and date. They closely resemble the form of a “long form bill” under the provisions of the UCR.

10. The fourth affidavit of Ms Karagiannis (FDN 40) disclosed the costs and disbursements incurred since those referred to in the third affidavit and the projected costs of the costs argument. It sought the payment of 50% of solicitors’ charges and 90% of counsel fees incurred. Recovery was also sought of anticipated estimated solicitors’ charges and counsel fees for the 27 September 2023 hearing.

    Respondent’s affidavit in response to the application

11. In her affidavit of 17 May 2023, the respondent accepted that the costs of the action were recoverable by the applicant on a standard costs basis but opposed an order for indemnity costs. She also opposed pre-action costs contending that these primarily arose from disputes between the applicant and herself as executors. Another law firm, Mellor Olson Lawyers, had acted for her and the applicant in their capacity as executors, and she said that the latter could have resolved many of those issues without retaining another law firm to act for him. He had also cost the estate many thousands of dollars due to unnecessary dealings he had with Mellor Olsson, the solicitors for the estate, although these assertions were neither particularised nor quantified.  

12. The respondent also referred to and exhibited an offer of settlement. With respect to the proceedings, she agreed disbursements at $3,487.25, counsel fees of Mr Taylor at $7,122.50, and solicitors’ charges at $10,635.87, a total of $21,245.62.

13. She testified that she was impecunious so payment could only be made once the property could be sold.

    Preliminary issue

14. During the hearing, objection was taken by the respondent to reliance by the applicant on FDN 2 (the applicant’s first supporting affidavit in the substantive proceedings) and FDNs 30, 32 and 40 being Ms Karagiannis’ affidavits in support of the applicant’s costs applications. Mr White submitted that the material in the affidavits going into the claim for administration costs as distinct from litigation costs was not relevant, that the costs awarded should be confined to the actual costs of and immediately incidental to the proceedings, and that to go further was a separate matter. However, Mr Taylor submitted in response that it was illogical to ignore pre action correspondence. The respondent’s conduct throughout the pre‑action stage justified a pre-action costs order, and that in any event the opposition made no difference, as the history of the matter was critically important. After hearing submissions, I ruled that these affidavits should be received.

    Submissions of the parties

15. The applicant filed written submissions on 24 May 2023 and Mr Taylor, his counsel, addressed and supplemented these submissions in oral argument at the hearing. The respondent likewise relied on her written submissions dated 16 June 2023 and supplemented these on 16 June 2023. Mr White, likewise, made oral submissions at the hearing, to which Mr Taylor replied.

    Principles

16. The argument has raised several issues for consideration, including the UCR provisions as to costs, the principles relating to costs disputes arising in deceased estates, indemnity costs and when these might be awarded, pre-action costs and when these might be awarded, lump sum costs, and the method of assessment of lump sum costs.

    The UCR costs rules

17. UCR 194.3 gives the Court an absolute discretion as to whether to award costs, and if they are awarded, as to the basis of any such award. The starting point is that costs between parties are to be determined on the standard costs basis and in accordance with the Higher Court Cost Scale. Accordingly, unless the Court’s discretion is otherwise exercised, costs inter partes are to be awarded on the standard costs basis, which effectively adopts the indemnity rule to the effect that costs orders are compensatory and expressly non‑punitive. That rule does not imply a full indemnity, and its effect is to compensate “necessary and proper” costs: Dal Pont Law of Costs at [16.23]

18. UCR 191.1 defines costs on a standard costs basis as meaning a basis on which costs are required to be shown by the person entitled to payment of costs to have been reasonably incurred in the proceeding (or the relevant part of the proceedings) determined by reference to the relevant costs scale in force when the costs were incurred. There is a slight difference from the Supreme Court Rules 2006 Rules, (“06 Rules”). Under the UCR recoverable costs must have been reasonably incurred “in the proceeding” as opposed to reasonably incurred “in the conduct of the litigation” under the 06 Rules, which may be a little broader in the scope of work covered. It also defines costs on an “indemnity basis” as meaning a basis on which costs are a complete indemnity against the costs incurred by the person entitled to payment of costs in the proceeding (or the relevant part of the proceeding) except to the extent that the costs are shown by the liable party to have been unreasonable incurred.  

    Costs in disputed estates

19. In the probate jurisdiction there had been an exception to the rule that costs follow the event, but this has now become something of an anachronism: Fielder v Burgess[1] at [58]. In any event the “probate costs exception” had occurred in circumstances where the litigation had been caused by or contributed to by the way in which the testator had made the testamentary intentions known, Fielder at [57]. That is not the case here, and as Kourakis CJ noted in Fielder:

    … the bottom line is that disputes are between private parties advancing competing claims to the testator’s bounty for their private financial benefit.[2]

    [1] [2014] SASC 98.

    [2] Ibid, [62].

    Indemnity costs

20. In Colgate-Palmolive Co v Cussons Pty Ltd,[3] Sheppard J, following a review of the relevant authorities, condensed the applicable principles as to awarding costs on a basis other than the standard basis, noting at 233 that the circumstances of the case were required to be such as to warrant the Court to depart from the usual course. The principles described in Colgate-Palmolive have been accepted in numerous cases in South Australia, these include IB Consulting v Dare Sutton Clarke Pty Ltd,[4] Perry J at [34]-[35], Shanamere Pty Ltd v Litigation Support Services Pty Ltd,[5] Sulan J at [30]-[31]; Steicke v Pederick & Anor (No 2)[6] Kelly, Nicholson and Lovell JJ at [9], and Mandeville v Better Lending Pty Ltd & Anor (No 2),[7] Doyle, Livesey and Bleby JJ at [30].

    [3] (1993) 46 FCR 225.

    [4] [2002] SASC 342.

    [5] [2006] SASC 120.

    [6] [2020] SASCFC 13.

    [7] [2021] SASCA 61.

21. The circumstances where costs are awarded on an indemnity basis include where there is evidence of misconduct causing a loss of time to the Court and to the other parties; where proceedings were commenced or continued in wilful disregard of known facts or clearly established law; where the proceedings were unduly prolonged by a groundless contention; and where there was an imprudent refusal of an offer to compromise. However, the judicial discretion remains at large, even if particular facts and circumstances exist which can warrant the making of an order for the payment of costs on an indemnity basis: Colgate‑Palmolive at [234].

22. It is clear from case law that indemnity costs are an exception and a rarity: Dal Pont Law of Costs, Cachia v Hanes[8] and Ragata Developments Pty Ltd v Westpac Banking Corporation.[9]

    [8] (1991) 23 NSWLR 304.

    [9]    Federal Court of Australia 5 March 1993, unreported.

23. The issue of indemnity costs in a probate case was considered in Re Amuso (No 2)[10] where Stanley J at [14] ordered that the applicant, having persisted in an unmeritorious action, was to pay the cost of the action on an indemnity basis. He noted that this award was not punitive, but was designed to ensure that the beneficiaries of the estate were not prejudiced by ill-judged applications.

    [10] [2021] SASC 61.

24. The recent case of In the Estate of Wenham (No 2)[11] involved whether a benefit under a will fell into residue or whether it passed. Stanley J observed that it was in substance a dispute between two beneficiaries as to who would get the benefit of a water licence. As Mr White submitted, this is a different situation to the present action which is essentially the breakdown of an administration action.

    [11] [2023] SASC 135.

    Pre-action costs

25. Section 40 of the Supreme Court Act 1935 (SA) provides:

    Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed, the cost of and incidental to all proceedings in the court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid. (emphasis added)

26. There is no specific provision in the UCR for pre-action costs other than UCR 61.16, which permits the Court to consider in the context of “costs of a proceeding,” issues relating to pre-action offers, whether a party unreasonably failed to accept a pre-action offer, or the conduct of the party otherwise in respect of pre-action steps.

27. At common law there is a well-established principle that legal costs incurred before an action has been commenced can be recovered in the subsequent litigation.

28. In Societe Anonyme Pecheries Ostendaises v Merchants Marine Insurance Co[12] Atkin LJ observed at 763 that it would be unfortunate if the costs of obtaining evidence while it was fresh after an accident could not be allowed, even if litigation seemed probable, merely because no writ had then been issued.

    [12] [1928] 1 KB 750.

29. In Ross v Caunters[13] at page 323, the Court noted that:

    The statement of claim also claims the legal expenses of investigating the plaintiff’s claim up to the date of the issue of the writ … at present I doubt whether any sum is recoverable under this head. If an order for costs is made in favour of the plaintiff, then some of these legal expenses of investigation may fall within that order as being “costs of or incidental to” these proceedings, and so of course could not be claimed as damages.

    [13] [1980] Ch 297.

1. Provided they are “costs incidental to proceedings” pre-action costs are properly recoverable. Whether costs are “incidental” will depend upon the circumstances of the case.

2. In Frankenburg v Famous Lasky Film Service Ltd[14] three tests were proposed by Lord Hanworth MR at 436, namely, were the costs incurred for material that ultimately proved to be of use and service in the action, was the material relevant to some of the issues that had to be tried and in respect of which justice was sought, and were the costs fairly attributable to the defendants’ conduct and within the costs which it was contemplated would have to be paid by the defendants.

   [14] [1931] 1 Ch 428.

3. The above tests were examined in Re Gibson’s Settlement Trusts[15] where Sir Robert Megarry VC at 187 noted that the ‘test cannot be simply whether the materials in question proved in fact to be of use in the action, for otherwise when a case is settled before trial it would often not be possible to say with any certainty which materials had been or would have been of use in the action’. The Court also considered that it would not be right to penalise a successful litigant for obtaining materials which appeared likely to be of use in the action but which, in the event, were never used because the other party did not contest the point. Even where the ‘immediate object in incurring the costs was to ascertain the prospective litigant’s chances of success,’ such costs would not per se be excluded from the costs of ensuing litigation.

   [15] [1981] 1 Ch 179.

4. In National Westminster Bank Plc v Kotonou,[16] Briggs J considered the question of principle as to whether costs incurred in the pursuit of negotiations designed to provide an interim solution to issues forming the subject matter of pending or contemplated litigation while leaving the issues to be finally determined at a later date could, subject to questions of proportionality and reasonableness, form part of the costs of those proceedings. His Honour observed:

   The question of principle thrown up by that analysis is whether costs incurred in the pursuit of negotiations designed to provide an interim solution to issues forming the subject matter of pending (or contemplated) litigation while leaving the issues to be finally determined later, can (subject to the usual questions of proportionality and reasonableness) form part of the costs of those proceedings. 

   The need to negotiate interim solutions to difficulties thrown up by contemplated or pending claims is a common feature of civil litigation. They include questions as to security for costs, questions as to the liberty of the defendant to use his assets (or assets claimed from him in the proceedings) for his own purposes pending trial, including for the purposes of funding the litigation, and issues as to the interim custody of, and dealings with, property the subject matter of the claim. Such issues are very frequently resolved without either party having to make an interim application, for example during pre-action stages, or by solicitors' correspondence and oral negotiations shortly after the commencement of a claim. 

   In the context of the litigation environment created and encouraged by the CPR and the Woolf Reforms, it seems to me obvious that such negotiations as to the resolution of interim issues should be encouraged, and that, therefore, the costs regime should accommodate the costs of such negotiations as part of the costs of the litigation, subject to the usual considerations of reasonableness and proportionality.

   It has for many years been part of the court's analysis of the question whether pre-litigation costs are costs of the proceedings to ask whether those costs related to the creation of materials 'ultimately proving of use and service in the action' or as being costs the incurring of which was 'proper for the attainment of justice' in the case: see Frankenburg v. Famous Lasky Film, Service Ltd [1931] 1 Ch 428 at 436 per Lord Hanworth MR, and Re Gibson's Settlement Trusts [1981] 1 Ch 179 at 185-187 per Sir Robert Megarry V-C. In my judgment costs incurred in the reasonable negotiation of interim solutions to problems arising between the parties in connection with issues to be decided in contemplated or pending litigation clearly fall within those principles.[17]

34             Gee, Re the Estate of [18] examined the correct approach to be taken as to what constituted costs incidental to an application and to the extent the same may be recoverable. It involved an application for relief in connection with the defendants' alleged breach of a court order. The claimant sought that its recoverable costs should include time spent which pre-dated the making of the application. HHJ Matthews stated that: 

The critical words defining the scope of the court's jurisdiction therefore are "the costs of and incidental to all proceedings". The proceeding with which I am currently concerned is the application made by the applicants and dated 10 December 2021. The question accordingly is, what are the costs "of and incidental to" that application. As to this, it is long established that recoverable costs may be incurred before the relevant proceeding has begun: see eg Re Gibson's Settlement Trusts [1981] Ch 179, 184-88; ENE Kos v Petroleo Brasileiro SA [74]-[100]. Indeed, I pointed this out in my judgment in the earlier application in these proceedings which I dealt with in July 2020: see [2020] EWHC 1842 (Ch), [34].

[16] [2009] EWHC 3309 (Ch).

[17] Ibid, [35]-[38].

1. After considering the matter the Court concluded: 

   In my judgment, the position here is similar. The original claimant (now the first claimant) reacted to the threat of what he considered to be a proposed breach of the order made in the original litigation and sought to dissuade the respondents from committing that breach. As it turned out, he was unsuccessful in doing so. But, had he succeeded, it would have saved this further application. And the materials which were produced by those attempts have been relevant to and useful in this application. I have no hesitation in saying that in my judgment the costs of reacting to the threat to commit a breach and the attempts to dissuade the commission of the breach are "incidental to" this application, seeking relief in respect of the breach after the event.

2. In Dal Pont “Law of Costs” (2003) 549 at [17.3] the learned author writes that “drawing the line between what is, and what is not, allowable on taxation in respect of pre-proceedings costs, is not capable of precise determination simply by statements of principle; the matter remains based in the discretion of the taxing officer dependent upon the particular facts of each case”.

3. In Mackenzie Real Estate Pty Ltd v Cenna Pty Ltd,[19] Herriman DCJ considered an application by the plaintiff for recovery of pre-action legal costs, observing at [84], that in the ordinary course, it appeared that pre-action costs properly incurred in connection with the proceedings were recoverable upon taxation, in the event of a favourable costs order.

   [19] [2007] SADC 101.

4. In State of Victoria v Sportsbet Pty Ltd (No 2)[20] Emmett, Kenny and Middleton JJ wrote at [14]:

   There is no in-principle objection to Tabcorp’s recovering costs from 22 December 2010, rather than 3 March 2011. The authorities show that an order for costs of and incidental to an application may include costs incurred in the preparation for litigation, as well as in the litigation, providing they satisfy the relevant test for determining the recoverability: see Sociétéé Anonyme Pêcheries Ostendaises v Merchants’ Marine Insurance Co [1928] 1 KB 756-757, 762-763, 765; Scheff v Columbia Pictures Corporation Ltd [1938] 4 All ER 318 at 323 (Slesser LJ), 324 (Mackinnon LJ); Re Gibson’s Settlement Trusts [1981] 1 Ch 179 at 188-189; Higgins v Nicol (No 2) (1972) 21 FLR 34 at 37-38; Quick R, Quick on Costs (Lawbook Co., subscription service) at [6.740] (update 64); and Costs Guide New South Wales (Lawbook Co., subscription service) at 2-7066 (updated 92). In all the above cases, the relevant test for recoverability was whether the expenses was “necessary or proper for the attainment or justice or for defending the rights of any party”.

   [20] [2012] FCAFC 174.

5. At paragraph [15] the Court continued:

   … We would not construe the words “in the conduct of the litigation” as precluding the recovery of costs incurred before a party was formally joined. Rather, the definition of costs as between party and party is directed to the substance of the matter: that is, an order for party and party costs will encompass such costs as were fairly and reasonably incurred in the conduct of the litigation by a person who is a party to the litigation at the time the costs order is made. Depending on the circumstances of the case, this not only covers costs incurred in the litigation (when a party) but also costs incurred in preparation for the litigation (prior to becoming a party). Whether or not any costs claimed by Tabcorp from 22 December 2010 are recoverable will ultimately depend on whether they are accepted as satisfying the conditions for recoverability in the current Rules.

6. In W Win Engineering Pty Ltd v Wiggins[21] Katzman J at [48] wrote that some pre-action costs might be costs fairly and reasonably incurred by a party in the conduct of the litigation. The reference in the Rules to “the conduct of the litigation” included costs incurred in the preparation for the litigation.

   [21] [2016] FCA 967.

7. An argument that costs incurred by a party before the issue of the proceedings were not “costs reasonably incurred” by the party in the conduct of the litigation in the context of previous District Court Rule 2006 r264 subs(4) and (5) was rejected in Ardalich v Ardalich,[22] referring to inter alia s 40 of the District Court Act1991, Crossley v South Australia (No 3)[23] at [10], The Corporation Of The City Of Campbelltown v Caltex PetroleumP/L (No 2),[24] and Bitzer Australia Pty Ltd v Japp.[25]

   [22] District Court (SA), Master Olsson, Reasons delivered 22 June 2021 (unreported).

   [23] [2020] SADC 89.

   [24] [2019] SAERDC 24.

   [25] [2014] FCA 1040.

8. Cases where pre-action costs were not allowed include Comcare v Labathas & McMahon[26] where antecedent costs incurred prior to the date of a reviewable decision were disallowed as costs of a subsequent appeal because the purpose for which they were incurred was that of the prior review proceedings. The Court referred to Schweppes' Limited v Archer[27] and Higgins v Nicol(No 2).[28] Likewise, in Masson Templier & Co v De Fries,[29] Vaughan Williams LJ at 538 disallowed as costs of an appeal, costs that had been incurred for divisional court proceedings.

   [26] (1995) 61 FCR 149.

   [27] (1934) 34 SR (NSW) 178.

   [28] (1972) 21 FLR 34.

   [29] [1910] 1 KB 535.

9. Essentially, the question of an allowance for pre-action costs is an issue of fact to be decided in each case.

   The circumstances in which lump sum costs should be awarded

10. Pursuant to UCR 194.3(3) the Court may award costs on a lump sum basis. The relevant principles were discussed in Viscariello v Macks (No 4),[30] Auxiliary Judge Norman at [83]-[104]. These include cases where the litigation between the parties has already consumed excessive and disproportionate resources, or where full recovery of taxed costs is not anticipated or is questionable. Viscariello was referred to in Leocon Pty Ltd v Angus Clyne Australia Pty Ltd[31] Slattery DCJ.

    [30] [2022] SASC 30.

    [31] [2022] SADC 104.

    The process of assessment of lump sum costs

11. The Court can be flexible in how it conducts such an enquiry, and how it is able to acquire the level of detail needed to decide that the costs awarded are fair, logical, and reasonable. It should be astute to avoid overestimating or underestimating the recoverable costs such as by applying an arbitrary discount, but it should not cause an injustice to the claiming party by an arbitrary “fail safe” discount on the cost estimate submitted to the Court. The party seeking the lump sum assessment bears the onus of satisfying the Court that there is sufficient information before it to enable it to make a “logical, fair, and reasonable” estimate of the costs. This does not require the applicant to produce the same evidence that would be required in an item-by-item taxation. Relevant factors include whether the claimant has prepared a work in progress or billing guide and has provided copies of invoices for counsel fees and for other disbursements. The task does not envisage any process like that involved in an item-by-item taxation, applying a much broader brush to fix the costs. It has been described as in some way analogous to assessing damages: Gallagher v CSR Ltd[32] WASC, Ipp J. The lump sum which might be awarded after the parties have been heard will not be a figure which would have been payable on a taxation of costs. That follows because the hearing before the Court on an application of this kind is not a taxation. The parties could only know the figure which will be arrived at on a taxation of costs after taxation: Smoothpool v Pickering[33] Lander J at [11]. Descending to the level of detail required for a taxation defeats the purpose of lump sum assessment: Auspine Ltd v Australian Newsprint Mills Ltd[34] O’Loughlin J at [16]. The task is one of estimation or assessment rather than an arithmetic: Koonara Management Pty Ltd v Rockliff (No 3)[35] at [64] citing Bayley & Associates Pty Ltd v DBR Australia Pty Ltd[36] at [17](e).

    [32] No 940164, 31 March 1994, unreported.

    [33] [2001] SASC 131.

    [34] (1999) 93 FCR 1; [1999] FCA 673.

    [35] [2020] FCA 523.

    [36] [2014] FCA 346.

12. In Tamaya Resourtces Ltd (In Liq) v Claymore Capital Pty Ltd (No 2)[37] at [14] Farrell J wrote that the common starting point for the assessment of lump sum costs was evidence of the charges for professional costs incurred and disbursements paid by the lawyers for the party to be awarded costs, and then this figure was characteristically adjusted to take into account the acceptability of the charges, the conduct of the proceeding, the measure of success on issues, the proportionality of the costs to the size of the victory and the nature, complexity, and importance of the case. That adjustment was then ordinarily affected through the application of a discount to the figure accepted by the court on the available evidence: Ginos Engineers Pty Ltdv Autodesk Australia Pty Ltd.[38]

    [37] [2015] FCA 637.

    [38] (2008) 249 ALR 371.

13. Various discounting has been applied to a claim for costs on a lump sum basis, depending on the circumstances of each case. In Sparnon v Apand Pty Ltd[39] and in Auspine Ltd v Australian Newsprint Mills Ltd[40] this was fixed at 15%, and in Cornwall v Rowan (No 4)[41] a discount range of 10–50% was fixed for solicitor’s costs, a range of between 10% and 30% for counsel fees, and 20% for disbursements other than counsel fees. In Wide Bay Conservation Council Incv Burnett Water Pty Ltd (No 9),[42] Logan J applied a discount of 40% for solicitors’ costs and of 20% for the photocopying component. In Thompson v Department of Environment and Conservation (No 2)[43] Barker J commenced with an estimate of the parties’ costs and then applied a discount of 33.5%. He observed that in assessing the gross sum the court would take a broader brush than the view of a taxation of costs, while noting that an arbitrary discount was something the court should caution against when making the gross sum estimate.

    Consideration

    [39] FCA, von Doussa J, No SG28/94, 4 March 1998, unreported.

    [40] (1999) 93 FCR 1.

    [41] [2006] SASC 111.

    [42] [2011] FCA 661.

    [43] [2011] FCA 970.

    General observations

14. In support of his claim for costs the applicant has filed affidavits and submissions in relation to the approach to be taken. These, in effect seek to characterise a sustained course of misconduct of the respondent. I accept the submissions of the respondent’s counsel that it would be inappropriate for the court to make any finding or to characterise her conduct for any purpose other than to rely on the orders already made, as to do so would require an enquiry into her motives and intentions. I rely, accordingly, on the findings made in the substantive proceedings which are set out in paras [78] to [84] of my previous reasons.

15. These, in summary, found that the respondent had been un-cooperative and obstructive in respect of the sale of the property both before and after the institution of the proceedings. In particular, notwithstanding the provisions in the will allowing her to reside at the property for 12 months after his death, she had resided and continued to reside there after that period had expired, without paying rent, she had advised through her solicitors that she did not wish to vacate, and she had later written to the beneficiaries informing them that she was not moving out and that they would need to convince a judge at the expense of the estate why she needed to be removed.

16. The situation had accordingly remained unresolved since then, with a long history of unfruitful communications. On 10 November 2020 the respondent had emailed the applicant suggesting that the property be put on the market, to which the applicant had requested dates for an agent to access the property, but she had not allowed access.

    
     Later, she had offered to purchase the property subject to finance being approved, but she was unable to provide proof thereof, and this had led to a fresh valuation of the property being obtained by the applicant's solicitor. She had made no efforts to identify any issues with that valuation report, nor had she commissioned another valuation. As a last resort, prior to the issue of proceedings on 13 May 2022, the applicant had on 2 February 2022 put his case, summarising the position, again asserting breaches of duty by the respondent, and giving notice of the forthcoming legal proceedings against her. Her response in a text message, was noted in my reasons with the observation that this was not one befitting an executor of an estate.

17. It was consequently accepted by the Court that the applicant had had no choice but to issue the proceedings, that he had established a departure by the respondent from her duties as an executor, and a course of conduct by her which had frustrated, delayed, and prevented the due administration of the estate, and this had been the position for several years. This would not have been resolved without its intervention.

18. Based on these findings, the issues requiring determination are considered.

    Indemnity costs

19. The principles relating to an award of indemnity costs are discussed above. To be entitled to such costs, the applicant must establish that it is appropriate to depart from the starting point set out in UCR 193.1(1).

20. The respondent has submitted that the Colgate-Palmolive decision rests substantially on the particularities of the then Federal Court Rules. However, the fact is that this case has been commonly utilised in both State and Federal Courts as a touchstone for the justification of an indemnity costs order. Instances of some South Australian cases where the case has been considered with approval are referred to above. Of course, as appears from these cases, each decision depends on its own circumstances, and in numerous instances there has been a reluctance of the court to depart from standard costs. Indeed, as appears from Colgate‑Palmolive itself at [24], the “settled practice” is that the Court ought not usually make an order for costs on some basis other than the party and party basis. This generally equates to the provisions of UCR 193.1(1).

21. It is accordingly appropriate to have regard to the circumstances set out in Colgate-Palmolive which might attract an award of indemnity costs.

22. Mr White also submitted that in the present case there had been an unrepresented litigant, an overlay of family dispute and mistrust, an inappropriate letter sent by the respondent to the applicant, and a lack of comprehension on her part concerning how her duties worked in litigation such as this. The fact of the matter was that the deceased’s choice of the respondent as an executor was perhaps not a good one, he contended.

1. However, the fact is that the known facts and applicable law had been brought to her attention well prior to the issue of proceedings and as early as June 2018 (I refer to the affidavit of Timothy Alympic dated 9 May 2022 exhibit TA -02) but she had nevertheless allowed them to be instituted and continued thereafter in the face of these considerations.

2. The core duty of executors is to call in assets and realise and distribute them to the beneficiaries in a timely manner. There had been no legal or factual basis whatsoever for the respondent to remain on the property after 1 December 2017, more than 4½ years before the claim was instituted. Had she vacated the property or submitted to the orders sought, unnecessary costs would not have been incurred. Once the proceedings were instituted, properly advised she should have conceded immediately.

3. A costs order is compensatory, not punitive. It is clear from the affidavit evidence in support of the present application that the applicant has incurred additional costs to those which would ordinarily be incurred in the winding up of an estate. The evidence is that the estate administration was undertaken by another law firm, Mellor Olsson Lawyers, who acted for both the applicant and the respondent in their capacity as executors. Further, separate invoices had been rendered by the applicant’s solicitors for the possession proceedings, so these costs are not included in the present claim.

4. In these circumstances, applying the principles set out in Colgate-Palmolive, this case is an appropriate instance in which to order a departure from the ordinary case, and to award costs of these proceedings against the respondent on an indemnity basis.

5. Notwithstanding this, the increased quantum of such an award will be considerably mollified by reason of the level of charges rendered to the applicant by his solicitors. Ms Karagiannis’ evidence is that these charges are, with some minor exceptions, fixed by reference to the Supreme Court Scale of Costs (now the Higher Court Costs Scale). Accordingly, in practical terms the gap here between costs on a standard basis and indemnity costs is likely to be relatively minimal. This is referred to in both Mr Taylor’s submissions at T3 to T4, and in Mr White’s submissions at T14.

   Pre-action costs

6. The applicant also seeks an order for the payment of his pre-action costs incurred from 2 December 2017 up and until the proceedings were instituted on 13 May 2022, on a standard costs basis. His position is that the respondent’s conduct throughout the pre-action stage justifies a pre-action costs order because both these costs and the costs of the proceedings themselves were caused by, and only by, the respondent’s conduct as particularised earlier. The deceased had not caused the dispute, so the “probate costs” rule should not apply, and the estate should not be burdened by having to incur the costs of the proceedings. The pre‑action costs claimed by the applicant had only been incurred due to the respondent’s conduct. These did not include administration costs which had been undertaken by Mellor Olsson Lawyers.

7. The respondent in response submitted that the attempt to seek pre‑action costs confused the costs of administration with litigation costs, and that this was impermissible. It was further submitted that s 40 of the Supreme Court Act1935 (SA) was a reference either to the process of administration by the court or in respect of which a trustee invoked the jurisdiction of the court, and in this case, it was the action, not pre-action correspondence, etc.

8. However, as has been pointed out by the applicant, the pre-action costs which are claimed are separate and distinct from the costs of administration and the costs of the possession order. They relate exclusively to the failure of the respondent to comply with her executorial obligations, and were incurred by the applicant in an endeavour to have her do this without the need for the delay, expense, and inconvenience of litigation.

9. Further, it is clear from the words of s 40 that the section expressly covers not only the administration of estates and trusts but also “all proceedings in the court” which would include the subject matter of these proceedings.

10. The respondent also argued that her pre-action conduct was anterior to the litigation, and as such not a proper basis for a special costs order. She contended first that the pre-action letter from Treloar and Treloar of 22 February 2022 was not an offer, but rather a historical summary which had accepted that the respondent was unable to purchase the property; secondly that although she appeared to have had some legal assistance at times during the larger dispute, she had not been legally represented for the purposes of the proceedings and was at an obvious disadvantage in her conduct of them; thirdly that she had not instituted the proceedings nor did she prolong them, and fourthly they were conducted with relative efficiency seemingly on affidavit evidence, with a one day hearing. It was further argued that the nature of the application related to the removal of a joint executor which was not one of the kind that applied in Re Amuso (No 2) which concerned the admission of a will to Probate. The litigation involved not an attempt by the respondent to obtain a greater benefit under the will, but rather a failure by her to act as an executor by vacating the property, which led to a frustration of the administration. The costs of the preliminaries, which had occurred years before the passing over order, almost prima facie overlapped everything else. As to the costs that had been incurred since the respondent’s letter of offer of May 2023, she submitted that either there should be no order for the costs of the argument (which might be a step too far) or that the costs of the argument should go back to her.

11. Although the respondent argued that she was unrepresented during the principal argument, the fact is that she had been represented until one month prior to the issue of the proceedings, and she had a solicitor from 2018, and another solicitor until April 2022. In any event, the test is not whether a litigant is represented or not, rather it is whether the litigant has been properly advised, and that was the position here. This case was not a dispute between competing beneficiaries for a benefit, rather it was the fact that the respondent had resided in the property for six years unauthorised and she had not paid rent in a situation where valuation evidence established that over the period of her occupancy after this entitlement ceased would be a benefit of $93,000 to her.

12. Against this factual background, I have considered the three tests proposed by Lord Hanworth MR in Frankenberg.

13. The first test in Frankenberg is whether the costs incurred in relation to material that ultimately proved to be of use and service in the action. In my view the answer to this is clearly yes. There are dual aspects to this test. The first relates to an attempt to resolve the dispute without resorting to litigation. The applicant was endeavouring to resolve the dispute with the respondent by agreement by her vacating the property and complying with her legal obligations. The costs included those incurred in him instructing his solicitors concerning the dispute and them investigating the matter and corresponding with the respondent and pointing out to her that her position of remaining in occupation was untenable and contrary to law. These were incurred to avoid the necessity for costly and time-consuming litigation. The applicant and his solicitors were obliged by virtue of the proportionality provisions set out in the UCR (UCR 1.5 and 3.1(1)(h) and 12.2) to attempt to achieve an inexpensive and proportionate conclusion to the dispute. This approach was furthered by the applicant when the respondent approached him with a proposal for her to purchase the property, which was ultimately unsuccessful, as she neither obtained finance nor permitted an agent to enter and inspect it. The second aspect of the first test was that in order to achieve the relief sought by the applicant, he was required through his solicitors to prove to the Court that notwithstanding the intentions of the deceased, who had appointed the respondent as one of his executors, it should revoke probate, pass over her as an executor, and appoint him as sole executor. A high onus is required before such an order is made by the Court, and the work undertaken prior to the issue of proceedings in order to make out the applicant’s case was reasonable and necessary.

14. The second test in Frankenberg is whether the material was relevant to some of the issues that had to be tried and in respect of which justice was sought. Again, the answer is clearly yes. The totality of the dealings between the applicant and his solicitors and the respondent was put on the record, and this included affidavit material sworn by both the applicant in person, and by his solicitor Ms Karagiannis. It was as a direct result of this material being on record that the applicant successfully obtained the orders he had sought.

15. The third test in Frankenberg is whether the costs sought are attributable to the respondent’s conduct and within the costs which it is contemplated will have to be paid by her. Again, the answer to this question is clearly yes. The respondent’s conduct was put before the Court and set out in full in the detailed affidavits of the applicant and Ms Karagiannis, and was relied upon by it in coming to its decisions in the substantive proceedings.

16. Having considered these matters and the case law analysed earlier in these reasons, which clearly supports orders for pre-action costs in appropriate circumstances, I have concluded that the pre-action costs claimed by the respondent can properly be considered as having been reasonably incurred and that they are “costs of and incidental to [the] proceedings” within the terms of s 40 of the Supreme Court Act.

    Lump sum costs

    Consideration

17. The applicant seeks that his costs be assessed on a lump sum basis and he submits that such an order would be logical, fair, and reasonable.

18. The respondent does not oppose a taxation on this basis but she contends that any lump sum assessment should consider the usual inefficiencies of litigation and the relatively uncomplex history of the proceedings (as distinct from the pre-action history). She points out that she has consented to orders for costs of the proceedings based on a lump sum payment of $21,245.62. Alternatively, she has consented to repay the applicant’s costs of the proceedings to be taxed on a standard costs basis in accordance with the Higher Courts Scale. She accepts that fixing a lump sum requires an enquiry and is an exercise analogous to the costs assessment process.  She also submits that an approximately 60 per cent discount on solicitor/client costs reflects an established and widely applicable, practical approach and she contends that the present proceedings were conducted relatively efficiently, so a discount of the order sought by her is appropriate. She further contends that administration costs should not be included, for example, the valuation of the estate property which was not a litigation expense and should be excluded from the costs awarded to the applicant.

19. I have considered these submissions. In my view a lump sum assessment is appropriate here. The matter should be finalised expeditiously and at minimal costs and expense to allow the due administration of the estate to finalise. The Court is informed that the estate includes both the property and two vehicles. There is also a small amount of cash but that will likely be set off against the outstanding legal fees of Mellor Olsson. The costs of a formal taxation will be disproportionate to the quantum of the costs sought. The applicant has provided full details of his costs, being solicitors charges, counsel fees, and external disbursements in a form close to that of a long form bill. A formal taxation will incur significant costs in a dwindling estate and will further delay its due administration. Any reliance on the respondent’s offer will be addressed by the lump sum costs assessment.

20. In assessing the applicant’s claim for costs on a lump sum basis, I have considered his affidavit material and submissions, and the responding material and submissions presented by the respondent. I have examined the individual items claimed in the schedules, keeping in mind that the costs are to be limited to the costs of these proceedings only, and are not to include estate administration costs nor any costs relating to the possession action. The assessment has been assisted by the fact that the costs claims are contained in virtually a “long form” schedules of costs. It is also of assistance that the charging rates of the solicitors come close to “Scale’ amounts, only exceeding these to a minor extent as noted above. As in the case of Charitopoulos v DJH Crowd Management (No 2),[44] Judge Lunn, I have regard to the fact that as a taxing Master I have a good working knowledge of what costs are likely to be allowed on a taxation.

    [44] [2009] SASC 241.

    Evidence provided

21. In the case of solicitors’ charges, the attendances contained in the accounts produced are particularised, identifying for each attendance the date thereof, a description of the attendance and its type with references to the nature of each task undertaken, and the amount charged in dollar terms for each attendance. From a perusal of the attendance claims, it is clearly apparent from the face of these accounts that they relate to the subject matter of these proceedings and not to other matters. In the case of Counsel fees, I have had regard to the rates charged by counsel in his invoices, and to the Indictor to Counsel fees for the relevant periods. Mr Taylor appears to have initially charged at the rate of $350 per hour, and later at the rate of $400 per hour, both of which come within the appropriate rate for junior counsel ($250 to $400) in the Indicator. His account is well particularised, in each instance setting out the date of the attendance, a summary of the work undertaken, the time spent for each task, and the dollar amount charged. In relation to disbursements, copies of these accounts have been provided

    Assessment of the applicant’s claim for costs on a lump sum

    Pre-action costs

22. In respect to the applicant’s claim for pre-action costs, these are to be assessed on the standard costs basis. The work was undertaken from 2 December 2017 up and until the date on which the proceedings were issued, 13 May 2022, and incorporates claims for solicitors’ charges, counsel fees, and disbursements. The solicitors’ charges total $17,437.93. In the Court’s view these are fair, logical, and reasonable in amount. The attendances have been particularised, and although the charges of Treloar and Treloar charge marginally greater than scale, a discount of 20% has been offered, reducing the claim for this component to $13,950.34. Counsel fees for this period are particularised and calculated at a rate consistent with the Indicator and are properly recoverable pre action costs. They amount to $577.50. In this instance, the applicant offers a reduction of 20% reducing this claim to $462.00. Finally, the disbursement claim is $42.05 for LTO fees, which is claimed in full.

23. I am satisfied in these circumstances that pre action costs should be awarded to the applicant as a lump sum in the amount of $14,454.39.

    Costs of action

24. In respect of the applicant’s costs of action, these are to be assessed, as decided, on an indemnity basis.

25. The solicitors’ charges, for the period to 30 January 2023 relate to the substantive aspect in this matter, for which the reasons for which were published on 19 January 2023. They amount to $17,726.45, for which a discount of 10% is offered. In my view these are logical, fair, and reasonable. Notwithstanding that they are awarded on an indemnity basis, the charge out rate is only slightly higher than scale, and in addition there is a discounting applied. I assess such costs in the sum of $15,953.80. In respect of Counsel fees, counsel has charged at a rate consistent with the Indicator and I accept that this is fair and reasonable. The work undertaken has been particularised in detail and is calculated in the sum of $7,700.00 for the period to 21 July 2023. Notwithstanding the award of costs on an indemnity basis, a discounting of $577.50 has been offered. I am satisfied that an award of $7,122.50 is appropriate and I assess the costs in this amount for this period. In respect of disbursements, the sum of $4,367.25 is sought in full. The Process Server, Courier fee and LTO search accounts were provided and are fair and reasonable, as is the Court filing fee. I have carefully considered the valuation fee of Jackman and Treloar dated 19 August 2022 in the sum of $880.00, having regard to whether it should be more appropriately characterised as an estate administration fee. However, it is clear from the evidence that this expense was incurred by the applicant in the context of the respondent’s offer (not ultimately pursued by her) to purchase the property from the estate, which required the applicant to respond to this offer at arm’s length (see [20] of my earlier reasons). Accordingly, the valuation fee is allowed as a disbursement, in addition to the other disbursements, which are also all allowed in the amounts claimed.

26. I am satisfied in these circumstances that the costs of action should be awarded to the applicant as a lump sum in the amount of $27,443.55.

    Costs since action, relating to the present costs application

27. The reasons for the substantive decision were published on 19 January 2023. The solicitors’ charges from the period since 30 January 2023 relate to the present costs application. Two invoices have been rendered, dated 28 April 2023 and 21 September 2023. These total $6,624.33. Again, the claims are particularised in detail. I note that some entries are referred to as “no charge” or at “zero rate”, and in other instances it is asserted that the claim for time spent has not been charged in full. A 50% reduction is offered in respect of these invoices, so the claim for this period is reduced to $2,849.55. This appears appropriate and it is allowed. Counsel fees incurred for the work from 14 October 2022 to 21 July 2022 total $5,268.08. This overlaps both the substantive proceedings and the present costs argument. The applicant claims 90% of these fees, namely $4,741.28. The invoice from counsel has been exhibited and is particularised. It covers the preparation for an attendance on the second hearing in the substantive action held on 1 December 2022, preparation for the initial court attendance for the costs application hearing held on 21 July 2023, and the attendance on this hearing.  These fees are costed at $400 per hour, which although an increase in counsel’s earlier charge out rates, continue to conform with the Indicator to counsel fees. I find that these charges are fair and reasonable.

28. I am satisfied in these circumstances that the costs of the costs application should be awarded to the applicant as a lump sum in the amount of $7,590.83.

    Costs relating to the hearing of 27 November 2023

29. Ms Karagiannis’ fourth affidavit at [8] and [9] testified that she and counsel have estimated that further solicitor’s costs for a two-and-a-half-hour argument would amount to approximately $840 plus GST and that the Counsel fees would amount to $1,000 plus GST. The transcript of that hearing on 27 November 2023 indicates that that hearing lasted just under one hour (10.15 to 11.03am). I would allow a half hour for preparation and conferring, so I allow $504 for Ms Karagiannis and $600 for Mr Taylor, a total of $1,104 for this hearing. The estimate does not seek an additional component for GST so this is excluded.

30. I am satisfied in these circumstances that the costs of the 27 November 2023 hearing should be awarded to the applicant as a lump sum in the amount of $1,104.00.

    Summary of costs assessed

1. The costs of action including the present costs application as assessed as a lump sum on an indemnity basis total $36,138.38.

2. The costs of the pre-action aspects as assessed as a lump sum on a standard costs basis total $14,454.39.

   Set off

3. The applicant has sought an order to set off any costs ordered against the respondent’s entitlement in the estate. The Court is empowered to make such an order and frequently does so: Re Amuso (No 2),[45] Stanley J at [14]. The applicant has a clear entitlement to such an order. As a beneficiary to the estate, the respondent will have an entitlement to her rights to receive her share of the estate proceeds. However, she has acknowledged her obligations to pay the costs, albeit on a standard costs basis. She has testified that she is otherwise impecunious. Pursuant to these reasons the applicant has an entitlement to his costs on an indemnity basis, including those relating to the present application, and to his pre‑action costs on a standard costs basis, such costs to be assessed on a lump sum basis. It is plainly appropriate that these be set off against any provision made to the respondent as a beneficiary to the estate. A set off is accordingly ordered.

   [45] Supra.

   Orders

4. It is ordered that:

   1.The applicant’s costs and disbursements as assessed in a lump sum be paid by the respondent on an indemnity basis of $ 36,138.38 (without recourse to an indemnity from the deceased estate).

   2.The applicant’s costs and disbursements prior to the issuance of proceedings (and not addressed in order 1 herein) from 2 December 2017 incurred in relation to the respondent’s unauthorised occupation of the estate property as assessed in a lump sum be paid by the respondent on the standard costs basis of $14,454.39 (without recourse to an indemnity for the deceased estate).

   3.The executor of the estate is directed that any costs orders made pursuant to orders 1 to 2 herein against the respondent are to be set off against any entitlement the respondent has in the estate of the deceased.

   4.Any shortfall in the costs incurred by the applicant is to be paid by the estate of the deceased on an indemnity basis and upon the footing of an indemnity.

   5.Liberty to apply.

   
   

[18] [2022] EWHC 1590 (Ch) (21 June 2022).