Bolger v McDermott (No 2)
[2013] NSWSC 1330
•16 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: Bolger v McDermott (No 2) [2013] NSWSC 1330 Hearing dates: 3 September 2013 Decision date: 16 September 2013 Jurisdiction: Equity Division Before: Hallen J Decision: (a) Orders, in the Probate proceedings, (2011/288478), that the Plaintiff is to pay the Defendants' costs, such costs to be calculated on the indemnity basis.
(b) Orders, in the Probate proceedings, that any of the Defendants' costs not recovered from the Plaintiff, are to be paid out of the estate of the deceased.
(c) Notes the agreement of the parties that for the purposes of assessment of costs, the costs of the Defendants of the Probate proceedings and of their costs of the family provision proceedings should be apportioned equally between the two proceedings.
(d) Orders, in the family provision proceedings (2010/213650), that the first Plaintiff is to pay the Defendants' costs calculated on the ordinary basis.
(e) Orders, in the family provision proceedings, that the balance of the Defendants' costs, calculated on the indemnity basis, as well as any costs not recovered from the first Plaintiff, are to be paid out of the estate of the deceased.
(f) Orders that the costs payable by the Plaintiff, in each of the proceedings, until paid, is to constitute a charge on the Plaintiff's entitlement under the 2008 Will of the deceased.
(g) In the event that the Plaintiff's interest in "Mimbil" is transmitted to him, the Defendants may lodge a caveat on the Plaintiff's interest in that property pending the payment of the costs of both proceedings as have been ordered to be paid.
(h) That there be no order for costs of the second Plaintiff in the family provision proceedings, to the intent that it will pay its own costs of the proceedings.
(i) Notes the orders made by consent on 24 May 2013 with regard to the occupation by the Plaintiffs of the estate realty known as "Keera" and notes that there was established NAB internet banking xxxx ("the bank account") in the name of the parties.
(j) Orders that the proceeds of the bank account be paid to the Defendants within 14 days of the date hereof.
Catchwords: Procedure - Costs in unsuccessful claim in Probate suit and in family provision proceedings - Whether to depart from the general rule that costs calculated on ordinary basis be paid by unsuccessful Plaintiff - Whether to order costs of Probate suit on indemnity basis - No dispute that unsuccessful Plaintiff should pay costs calculated on ordinary basis of family provision proceedings - Overall justice of the case Legislation Cited: Civil Procedure Act 2005
Succession Act 2006
Uniform Civil Procedure Rules 2005Cases Cited: Australiawide Airlines Limited t/as Regional Express v Aspirion Pty Limited [2006] NSWCA 365
Bolger v McDermott [2013] NSWSC 919
Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52
Harkness v Harkness (No 2) [2012] NSWSC 35
Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd (2010) 182 FCR 84; [2010] FCAFC 5
Kazar (liquidator) v Kargarian; Re Frontier Architects Pty Ltd (in liq) [2011] FCAFC 136; (2011) 284 ALR 237
Liverpool City Council v Estephan Estephan (Executor and Administrator of the Estate of the late Jocelyn Estephan) [2009] NSWCA 161
Ohn v Walton (1995) 36 NSWLR 77
RDCW Diamond (Pty) Limited v Da Gloria [2007] NSWSC 1325
Wilcox, Re; Ex parte Venture Industries [1996] FCA 1942; (1996) 72 FCR 151Category: Costs Parties: Paul Anthony Bolger (first Plaintiff)
Aus Scrap Metal Recyclers Pty Limited (second Plaintiff)
Joanne Margaret McDermott
(first Defendant)
Nicholas Timothy Bolger
(second Defendant)Representation: Counsel:
Mr R Wilson (Plaintiff)
Mr L Ellison SC (Defendants)
Solicitors:
Resolve Legal (Plaintiff)
Watson McNamara & Watt (Defendants)
File Number(s): 2010/213650; 2011/288478
Judgment
HIS HONOUR: In this matter, I delivered principal reasons for judgment on 11 July 2013, the medium neutral citation of which is Bolger v McDermott [2013] NSWSC 919 ("the principal judgment"). These reasons should be read with the principal judgment. Whilst, in these reasons, I shall refer, where necessary, to events and things in the same way as they were described in the principal judgment, I shall refer to the parties by his, and their, role in the proceedings.
As stated in the principal judgment, there were two different proceedings commenced by the Plaintiff, Paul, to which that judgment related, one in the Equity List and one in the Probate List. In the first, the Plaintiff sought a family provision order under the Succession Act 2006 out of the estate of the deceased who was his father. Because of the nature of the relief that the Plaintiff sought, and because it was a necessary party to the proceedings, his company, Aus Scrap, was named as a second Plaintiff in the proceedings. However, no final relief was specifically sought by it. I shall simply refer to Paul as the Plaintiff in these reasons and it is from him that costs are principally being sought.
In the second proceedings, the Plaintiff sought revocation of a grant of Probate of the deceased's 2008 Will and an order that he be granted administration, in the alternative, of two different documents, each of which was said to purport to state the testamentary intentions of the deceased and be intended by the deceased to form his Will, within the meaning of s 8 of the Succession Act.
The Plaintiff was unsuccessful and each of the proceedings was dismissed. In accordance with orders sought in a Cross-Claim, Probate in solemn form of the deceased's duly executed 2008 Will was granted to the Defendants and the matter was referred to the Registrar to complete the grant. At the date of the costs hearing, the Probate document had not been received from the Court.
The costs of the proceedings were not dealt with in the principal judgment. Immediately following it being published, I allowed the parties an opportunity to consider the additional orders, including the costs orders, which should be made. Somewhat optimistically, I was hopeful that they would be able to resolve those issues without further costs being incurred. Unfortunately, but perhaps not unexpectedly, they have not been able to do so and it is now necessary to determine how the burden of the costs of both proceedings, including the costs of the costs hearing, should be borne.
This judgment deals with the outstanding issue of the costs of both proceedings.
A Preliminary Matter - Transcript Error
Before proceeding to deal with the issue of the costs, there is one matter that requires attention. This matter arose following the principal judgment being published.
At [180] of the principal judgment, I reproduced evidence given by Ms Novotny, the forensic document examiner, taken from the transcript. I wrote in that Paragraph:
"In relation to the specific evidence by Paul that the signature on the 2009 handwritten document was written in pencil, and also in pen, on 30 June 2009 and that the pencil signature was erased at some time between about October to December 2010, that is to say, 15 to 18 months after the signature had been written in pencil, Ms Novotny said:
"The smudging of the ink appears to be a result of erasing what is or was a pencil mark or marks in the background of the signatures which are illustrated in the four typed images on that chart and the fact that it is smudged is a result of the ink still being wet at the time the pencil was erased. In a time period between June, approximately June 2009 and about October 2010 I would expect that the ink would have well and truly tried. I would not expect to see any smudging of the components of the ink which under infrared luminescence conditions would show that degree of smudging. Typically it is at the most 8 to 10 months before ballpoint pen ink is technically dry on the paper." (My emphasis)
Following the principal judgment being delivered, senior counsel for the Defendant wrote a letter dated 24 July 2013, to the Court, stating that Ms Novotny had informed the Defendants that her recollection of her evidence was:
"... Typically it is at the most 8 to 10 minutes before ballpoint pen ink is technically dry on the paper."
Naturally, senior counsel had sent a copy of his letter to counsel for the Plaintiff. There was no controversy about the error in the transcript as the letter also stated: "Mr Wilson and I would have no objection to the transcript being corrected and, as a consequence, paragraph 180 of the judgment being amended".
Enquiries made by the Court of the Reporting Services Branch confirmed that there had, indeed, been a transcript error, and that the word "months" in the sentence highlighted should have been "minutes", thereby corroborating Ms Novotny's recollection of her evidence. (The enquiry was made for abundant caution and not because of any doubt about Ms Novotny's recollection of her evidence.)
An email was sent by my Associate to counsel for each of the parties acknowledging the transcript error and stating that the matter would be dealt with at the hearing of the costs argument in open Court.
The parties, at the costs hearing, accepted that the evidence, given by Ms Novotny, would not have affected the ultimate result of the Probate proceedings. It would have only strengthened the basis for the conclusion that I should not accept the Plaintiff's evidence on the topic.
I am satisfied that the error in the transcript and in the principal judgment may be corrected in this way, particularly since the parties agree to the correction being made and because there is no material impact upon the ultimate result of the Probate proceedings. I am also satisfied that neither party has been disadvantaged by the error, or by having the correction made at this stage.
Steps will now be taken for the error in the transcript to be corrected and re-issued to ensure that the evidence by Ms Novotny is accurately stated therein. In addition, paragraph [180] of the principal judgment will be amended to accurately state her evidence.
The Costs Hearing
Neither party tendered any evidence at the costs hearing. I gleaned from this that neither party had served an offer of compromise, or a Calderbank offer, which would be relevant on the issue of costs.
Neither party troubled himself, or themselves, with forwarding any written outline of submissions on costs, although senior counsel for the Defendants did forward draft orders that the Defendants proposed should be made.
In the Probate proceedings, the orders proposed on behalf of the Defendants were:
"1. Orders that the Plaintiff to pay the Defendants' costs of the proceedings on the indemnity basis.
2. Orders that to the extent the Defendants' costs are not otherwise satisfied by order 1, the Defendants' costs to be paid out of the estate of the deceased on the indemnity basis.
3. Orders that for the purposes of assessment of costs, the costs of the Defendants of these proceedings and proceedings 2010/213650 are apportioned equally between the two proceedings."
In the family provision proceedings, the orders and notations proposed on behalf of the Defendants were:
"1. Orders that the Plaintiffs to pay the costs of the Defendants.
2. Orders that to the extent the Defendants' costs are not otherwise satisfied by order 1, the Defendants' costs to be paid out of the estate of the deceased on the indemnity basis.
3. Orders that for the purposes of assessment of costs, the costs of the Defendants of these proceedings and proceedings 2011/288478 are apportioned equally between the two proceedings.
4. Notes that on 24 May 2012, the following order was made by consent with regard to the occupation by the Plaintiffs of the estate realty known as "Keera" -
"2. Pending the final hearing of these proceedings, the plaintiffs to pay an occupation fee of $300.00 per week from 21 March 2012 until final order into a joint account to be established in the name of a legal representative of the plaintiffs and a legal representative of the defendants."
5. Notes pursuant to order 2 made on 24 May 2012, that there was established NAB internet banking xxxx ("the bank account") in the name of the parties.
6. Orders that the proceeds of the bank account be paid to the Defendants."
The Plaintiff proposed no orders in relation to either of the proceedings prior to the costs hearing.
At the costs hearing, counsel for the Plaintiff, in relation to each of the proceedings, conceded that the Plaintiff should pay the Defendants' costs, calculated on the ordinary basis, upon the basis that costs will ordinarily follow the event. He opposed an order that the Plaintiff should pay the Defendants' costs, calculated on the indemnity basis, of the Probate proceedings. He provided no reasons in his submissions in reply, why such an order should not be made and did not dispute the submissions made on behalf of the Defendants.
Senior counsel for the Defendants orally submitted that the Plaintiff should pay the Defendants' costs, calculated on the indemnity basis, of the Probate proceedings. He submitted that it was the Plaintiff's conduct that led to the Probate proceedings, and that the Plaintiff, on his own evidence, was intimately involved in the creation, and execution, of each of the testamentary documents, in its final form, that he sought to propound. In those circumstances, the beneficiaries of the estate should not have to bear any part of the burden of costs of the Defendants having to defend the Probate proceedings.
Senior counsel pointed out, also, that the hearing date, earlier given, had to be vacated, because the Plaintiff revealed to the Defendants and to the Court the 2009 handwritten document and the 2009 typewritten document only shortly before the proposed hearing date which had not only increased costs but had delayed the final determination of the proceedings.
Finally, he submitted that the Plaintiff's evidence had changed, dramatically, shortly prior to the hearing.
Neither counsel referred to any authorities, or the principles, that are applicable for an order for indemnity costs. Nor did either make any submissions by reference to authorities that deal with costs in Probate suits. (I assume that this was because it was accepted that the Plaintiff could not allege, in view of the findings, that an investigation of what was the deceased's last testamentary instrument was justified, or that it was the deceased who had been the cause of the litigation.)
Principles regarding Costs Generally
The Civil Procedure Act 2005, s 98(1), provides that subject to the rules of Court, and that, or any other, Act, costs are in the discretion of the Court. The discretion is broad but not unconfined. It is a judicial discretion to be exercised on a principled basis.
Section 98(1)(c) provides that subject to rules of court and to the Civil Procedure Act or any other Act, "the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis".
The Uniform Civil Procedure Rules 2005 ("the UCPR"), rule 42.1, provides that costs follow the event, unless it appears to the Court that some other order should be made as to the whole, or any part, of the costs. The rule provides that the discretion to award costs, ordinarily, will require an order that the successful party's costs will be paid by the unsuccessful party. The power to "make any order as to costs" enables the Court, in an appropriate case, to depart from the general rule if it would be unjust to apply it. Thus, there is flexibility in determining questions of costs.
The UCPR rule 42.20(1) provides that if the Court makes an order for the dismissal of proceedings, then, unless the Court orders otherwise, the plaintiff must pay the defendant's costs of the proceedings to the extent to which they have been dismissed.
The effect of these rules, in this case, is that the Plaintiff must pay the Defendants' costs unless the Court otherwise orders, and the Court can only order otherwise if there is a discretionary decision to depart from what the rules provide: Australiawide Airlines Limited t/as Regional Express v Aspirion Pty Limited [2006] NSWCA 365 at [10]. In other words, the rules reflect the general proposition that an award of costs is discretionary, but, generally, the discretion is exercised in favour of the successful party: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at [25].
The UCPR rule 42.2 provides:
"Unless the court orders otherwise or these rules otherwise provide, costs payable to a person under an order of the court or these rules are to be assessed on the ordinary basis."
There is no suggestion that the Act and the UCPR do not apply to Probate or family provision proceedings.
The purpose of a costs order is to compensate, or indemnify, the person in whose favour it is made, not to punish the person against whom it is made: Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ.
In Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd (2010) 182 FCR 84; [2010] FCAFC 5, Gray J, in the Full Court, said at [17]:
"The overriding principle that costs are in the discretion of the Court can also be expressed in terms of the negative proposition that no rule or principle should be applied mechanically in the determination of the question where costs should lie in any particular case. Attention must always be paid to the particular circumstances of the individual case. The aim is to do substantial justice in relation to costs, based on the outcomes of the various issues in the proceeding, as between the entities that are parties to that proceeding."
Ultimately, the Civil Procedure Act and the UCPR require the Court to make such order as it thinks just in the particular circumstances of the case: Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343 at [10].
As has been noted (albeit in another context), in Kazar (liquidator) v Kargarian; Re Frontier Architects Pty Ltd (in liq) [2011] FCAFC 136; (2011) 284 ALR 237, at [9] (by Greenwood and Rares JJ):
"The exercise of the discretion takes account of all of the contextual circumstances of the litigation and the conduct of the parties. One aspect of the award of costs is a recognition that a party has been put to expense which, taking account of the merits as ultimately found on the trial of the action, might otherwise have been avoided. That consideration does not infuse the award of costs with any sense of penalty or punishment but simply recognises the compensatory nature of an award of costs, in context and according to principle. That is why an award of costs, although involving the exercise of a discretion, generally favours the successful party. As to the importance the community attaches to legal costs incurred of and incidental to the resolution of controversies before courts, see Clark v Cmr of Taxation [2010] FCA 415 at [90]; Uniline Australia Ltd v S Briggs Pty Ltd (No 2) [2009] FCA 920; (2009) 82 IPR 56 at [38]; and, Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 at [130] to [132]."
In Ohn v Walton, at 79, Gleeson CJ said:
"The usual rationale of making a costs order is that it is just and reasonable that the successful party should be reimbursed for costs incurred, in the absence of grounds connected with the charge or conduct of the proceedings which make it unjust or unreasonable that there should be such reimbursement."
The real issue that arises in the present case relates to whether the Plaintiff should bear the Defendants' costs of the Probate suit calculated on the indemnity basis.
In RDCW Diamond (Pty) Limited v Da Gloria [2007] NSWSC 1325, Rothman J dealt with the bases on which an indemnity costs order could be made. His Honour wrote, at [14]:
"Leaving aside for present purposes any issues associated with Calderbank offers or the status of trustees and other special classes, indemnity costs may be awarded, relevantly, when a party/party costs order is insufficient in the circumstances to compensate for costs unreasonably incurred due to the misbehaviour of the other party. Common examples include: misleading a court; conduct that has caused unreasonable delay and expense; where there were no real prospects of success; where there has been unreasonable delay for the purpose of a tactical advantage: see Wentworth v Rogers [1999] NSWCA 403; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants (1988) 81 ALR 397; Rouse v Shepherd (No. 2) (1994) 35 NSWLR 277. There are many other examples of conduct by a losing party that warrants the award of indemnity costs."
Black CJ, in Re Wilcox; Ex parte Venture Industries (No 2) [1996] FCA 1942; (1996) 72 FCR 151, at 152 and 153, wrote:
"... indemnity costs may properly be awarded where there is some special or unusual feature in the case justifying the Court exercising its discretion in that way. See John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 at 203 per Hill J, referring to the judgment of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225. But as Hill J pointed out in John S Hayes (at 203):
'... care must be taken not to circumscribe the discretion by reference to closed categories. It is not a necessary condition of the power to award costs that a collateral purpose be shown. The categories warranting the exercise of the discretion are not closed: Colgate-Palmolive at 233; Titijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, 3 May 1991 per French J at p 8; Regata Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court, 5 March 1993) per Davies J at p 6. In each case it will be necessary to look at the particular facts and circumstances to see whether an exercise of discretion to order costs on an indemnity basis is warranted.'"
In Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, Basten JA (with whom Giles JA and Young CJ in Eq agreed on this point), wrote, at [106] - [113]:
"The modern approach to the question of awarding indemnity costs is often sourced to the judgment of Holland J in Degmam Pty Ltd (In liq) v Wright (No. 2) [1983] 2 NSWLR 354. In cases where the winning party has acted extravagantly, thus running up unnecessary costs, it may be inappropriate to require the losing party to pay all of the winner's costs. However, the question of indemnity costs will usually arise in circumstances where it is the losing party which has behaved inappropriately. Degmam itself was a case in which the unsuccessful defendant made factual allegations which were "false and deliberately concocted by her in an attempt to deny the plaintiff its rights and to shift all blame and legal liability ... from herself": at 358. His Honour continued:
"As well as that, she so conducted herself in the proceedings, by multiplying allegation upon allegation, and by prevaricating in the witness box, as grossly to prolong the litigation, thereby to cause the other parties to incur liability for solicitor and client costs far beyond what they could reasonably have expected to incur in litigation of genuine issues."
These principles were applied in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; 81 ALR 397 at 400-401, by Woodward J. His Honour referred to the case where an action had been commenced or continued in circumstances where "the applicant, properly advised, should have known that he had no chance of success": at 401. His Honour explained:
"In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law."
In later cases it has been emphasised that the circumstances identified in Degmam and Fountain are not to be treated as exhaustive of the cases in which indemnity costs may be awarded: see, eg, J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA Branch) (No. 2) [1993] FCA 42; 46 IR 301 at 303 (French J). It was sufficient, his Honour said, to enliven the discretion to award such costs that "for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case". An indemnity costs order will be warranted where proceedings were maintained by a party having "no reasonable prospect of success": see, eg, Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 (Powell J); Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242 at 273 (Mahoney JA).
The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257 (Pullin and Buss JJA, and Newnes AJA) held that an indemnity costs order must be justified by "some special or unusual feature of the particular case": at [5]. Nevertheless, in declining to make such an order, the Court merely held that the respondent could not be accused of "having some ulterior motive, or wilfully disregarding the facts or the law": at [7].
In Colgate-Palmolive, Sheppard J sought to elucidate the principles to be derived from the earlier cases: at pp 232-233.
Nevertheless, more recent case-law generally shows a tendency to grant indemnity costs orders more readily than was the case in the past. That may be seen to be an element of a broader policy directed to limiting the litigation of cases where there are no reasonable prospects of success: see, eg, Legal Profession Act 2004 (NSW), Part 3.2, Div 10. Such a policy is also reflected in the presumption in favour of an order of indemnity costs where an offer of compromise in accordance with court rules has been made by one party but not accepted by the other and where the offeror has bettered the offer in the litigation. Although the court may otherwise order, the fact that the offeree may be at substantial risk as to an adverse costs order, to be assessed on an indemnity basis, if the offer is bettered, places a significant financial incentive favouring careful consideration of such offers and careful assessment of the benefits of settlement.
As appears from the discussion in Commonwealth of Australia v Gretton [2008] NSWCA 117 (Beazley JA, Mason P agreeing) at [48]ff, the test of unreasonableness, applied with respect to the consequences of refusing a Calderbank offer are likely to operate also with respect to other aspects of a party's conduct of litigation: see also Gretton at [117] (Hodgson JA), referring to Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616 (Mason P, Clarke AJA agreeing).
While the general rule remains that costs should be assessed on a party and party basis, it is important that the standard to be applied in awarding indemnity costs not be allowed to diminish to the extent that an unsuccessful party will be at risk of an order for costs assessed on an indemnity basis, absent some blameworthy conduct on its part. A test of unreasonableness should not be upheld on other than clear grounds. Nevertheless, the evaluative judgment thus engaged was satisfied by the findings of fact made by the trial judge and not directly challenged on appeal, except on the basis of other grounds referred to above. In those circumstances, the discretionary power to award costs on an indemnity basis was engaged and it was not demonstrated on House v The King principles that the discretion had miscarried."
In Liverpool City Council v Estephan Estephan (Executor and Administrator of the Estate of the late Jocelyn Estephan) [2009] NSWCA 161, the Court of Appeal stated, at [100] - [101]:
"Section 56 of the Civil Procedure Act now adds emphasis to occasion to depart from costs on the ordinary basis where failure properly to conduct the proceedings had caused costs to be incurred unnecessarily. But it does not override the need for a rational connection between the reason for departure and the extent of the departure.
There may no doubt be cases in which the effect of the misconduct is so pervasive that, in a proper exercise of the general discretion, the higher level of reimbursement can extend to the entire costs of the proceedings. That is perhaps the explanation for Adelaide Congregation Jehovah's Witnesses Inc v Pegasus Leasing Ltd (Olsson J, SASC, 24 December 1996, unreported), where the defence was described as unrealistic and uncompromising as to all issues and leading to a very protracted trial. It is necessary to remember that the trial judge was exercising a discretion, and a discretion in relation to costs as to which this court is particularly cautious in its intervention; a trial judge is in an advantageous position in arriving at the just disposition of costs. However, the trial judge did not express a pervasive effect of the Council's conduct of which he was critical, or say that the Council acted unreasonably in defending at all."
In summary, then, an order for costs calculated on the indemnity basis can usually be justified because, in the circumstances, it would be unfair or unjust to require the successful party to bear costs calculated on the ordinary basis, or where there may be some special or unusual feature in the case to justify the Court in departing from the usual order. The question will be whether the particular facts and circumstances of the case warrant the making of an order for costs other than on the ordinary basis.
If a party's conduct is relied upon, the conduct which falls to be assessed in determining whether an indemnity costs order should be made is that which relates to the proceedings in which the order is sought.
The categories of case in which the discretion to award costs calculated on the indemnity basis may be properly exercised are not closed. Also, the mere existence of facts and circumstances capable of warranting an order for costs calculated on the indemnity basis does not mean that the Court is obliged to make such an order, as costs, ultimately, remain in the discretion of the Court.
Costs in Proceedings for a family provision order
Because of the wording of s 98(1) of the Civil Procedure Act, it is necessary to consider the provisions of the Succession Act 2006. Relevantly, s 99 of that Act provides:
"(1) The Court may order that the costs of proceedings under this Chapter in relation to the estate or notional estate of a deceased person (including costs in connection with mediation) be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit."
It is clear that s 99 of the Succession Act, provides for an unfettered discretion as to how the costs of the proceedings for a family provision order may be borne. It also provides an unfettered discretion as to the part, or parts, of the estate, or notional estate, that is, or are, to bear the burden of costs. Importantly, the section relates to the payment of costs out of the estate or notional estate or both . It does not appear to relate to how costs may be borne otherwise.
It is unnecessary to refer to the costs principles, which I have discussed in other cases (see, for example, Harkness v Harkness (No 2) [2012] NSWSC 35), in which a Plaintiff has been unsuccessful in obtaining a family provision order, since in this case, the Plaintiff conceded that he should pay the Defendants' costs calculated on the ordinary basis, and the Defendants did not seek any different costs order.
Determination
It is necessary to look at the whole of the evidence in each of the cases and all its circumstances, to remember also my findings of fact in the substantive proceedings (which are not repeated). The evidence and those findings will assist in setting the context against which the basis upon which the Defendants' costs are to be calculated.
I note the following particular features:
(a) In the Probate proceedings, the Plaintiff failed because he could not satisfy the Court that the deceased wrote, and signed, the 2009 handwritten document, and that the deceased had signed the 2009 typewritten document and that the deceased intended either document to form his Will, or to form an alteration to his Will or to form a partial or full revocation of the 2008 Will.
I was also not satisfied that the deceased intended either the 2009 handwritten document or the 2009 typewritten document to operate as a "stopgap will". It followed that I did not accept the 2009 handwritten document and the 2009 typewritten document were testamentary documents signed by the deceased, or that either purported to state his testamentary intentions, at that time.
(b) The Plaintiff failed, completely, in establishing what was necessary in order to succeed in propounding either document as a document to which s 8 of the Succession Act would apply.
(c) In reaching conclusions about the Plaintiff's evidence on the topic of the 2009 handwritten document and the 2009 typewritten document, commencing at [230], I set out the matters that had damaged the Plaintiff's credit to the point where I was unable to accept his evidence on the topic of the creation, and execution, by the deceased, of the 2009 handwritten document and the 2009 typewritten document. I also set out reasons for the rejection of the evidence of Heather, Ms Eustace and Mr Glover.
(d) The transcript correction referred to above provides another reason for not accepting the Plaintiff's evidence on the topic.
(e) I found it unnecessary to conclude that the deceased's handwriting and signature on each document was a forgery, since that allegation had not been made in the Defence to the Statement of Claim.
(f) It was the Plaintiff who had propounded the two testamentary documents. It was only his conduct that led to the investigation of the circumstances surrounding these two documents. Importantly, he did not advert to either until some time after the death of the deceased. I described the delay in doing so as "significant" (at [118]).
(g) The nature of the Plaintiff's evidence changed significantly very shortly before the hearing. He must have known, prior to the time that he filed the last affidavits upon which he relied, that his earlier evidence was, if not inaccurate, was certainly incomplete. It seems that he continued the probate proceedings, almost until the hearing, with a complete disregard of what he asserted were the true facts, which facts only he knew.
(h) The Plaintiff was propounding two testamentary documents, in the alternative, which altered his interest in the deceased's estate. His brother, Michael, who would have received a greater share of the deceased's estate under each of those two testamentary documents, supported the Defendants and the relief that they sought in the Cross-Claim. Thus, the Plaintiff, effectively, was seeking to advance his own interests only by commencing, and continuing with, the Probate proceedings.
(i) The Defendants were successful on the Cross-Claim and in defending the claims made by the Plaintiff in the amended Statement of Claim. Once the Probate proceedings were commenced, they were left with little choice but to file a Cross-Claim. (There was no dispute, however, in the event the Plaintiff did not succeed, that the Defendants should obtain the grant of Probate in solemn form.)
I am of the view that the overall justice of the Probate case points to an order that the Plaintiff should pay the Defendants' costs, calculated on the indemnity basis. That order is designed not to punish the Plaintiff, but rather to recognise that the estate, and thus, the other beneficiaries, should not have to bear costs that were incurred only because of the Plaintiff's actions.
I have, of course, considered the effect of an order of the kind proposed by the Defendants upon the financial and material circumstances of the Plaintiff. An adverse costs order, particularly of the type sought, against the unsuccessful Plaintiff, will detract from the provision made by the 2008 Will for his maintenance and advancement in life. However, this does not go to the question whether indemnity costs of the Probate proceedings should be ordered.
There is no reason why, in both proceedings, the Defendants should not recover the difference between the costs payable by the Plaintiff, and their costs calculated on the indemnity basis, out of the estate, in the event that those costs are not recovered from the Plaintiff. They were not acting to protect only their own shares of the deceased's estate. In the events that occurred, they were also successful in opposing the relief sought by the Plaintiff. Michael supported them.
In relation to the family provision proceedings, the parties agreed that the Plaintiffs should pay the Defendants' costs calculated on the ordinary basis. My only hesitation in accepting that agreement is that I do not think that Aus Scrap should be ordered to pay those costs since the real issues fought at trial were personal to the Plaintiff, Paul, not to his company.
I am informed that, since the hearing, Aus Scrap has done what it was required to do in relation to paying the occupation fee into the nominated bank account.
There has been no objection by the Plaintiffs to the other orders sought by the Defendants, which, in all the circumstances, seem appropriate. Accordingly, I propose that, broadly speaking, those orders should be made.
The Plaintiff did not suggest that the division of costs between the two proceedings should be other than equal in the event that I made an indemnity costs order. Looking at the matter globally, this seems to be an assessment that should not be quibbled with.
The orders that I make are as follows:
(a) Orders, in the Probate proceedings (2011/288478), that the Plaintiff is to pay the Defendants' costs, such costs to be calculated on the indemnity basis.
(b) Orders, in the Probate proceedings, that any of the Defendants' costs not recovered from the Plaintiff, are to be paid out of the estate of the deceased.
(c) Notes the agreement of the parties that for the purposes of assessment of costs, the costs of the Defendants of the Probate proceedings and of their costs of the family provision proceedings should be apportioned equally between the two proceedings.
(d) Orders, in the family provision proceedings (2010/213650), the first Plaintiff is to pay the Defendants' costs calculated on the ordinary basis.
(e) Orders, in the family provision proceedings, that the balance of the Defendants' costs, calculated on the indemnity basis, as well as any costs not recovered from the first Plaintiff, are to be paid out of the estate of the deceased.
(f) Orders that the costs payable by the Plaintiff, in each of the proceedings, until paid, is to constitute a charge on the Plaintiff's entitlement under the 2008 Will of the deceased.
(g) In the event that the Plaintiff's interest in "Mimbil" is transmitted to him, the Defendants may lodge a caveat on the Plaintiff's interest in that property pending the payment of the costs of both proceedings as have been ordered to be paid.
(h) That there be no order for costs of the second Plaintiff in the family provision proceedings, to the intent that it will pay its own costs of the proceedings.
(i) Notes the orders made by consent on 24 May 2013 with regard to the occupation by the Plaintiffs of the estate realty known as "Keera" and notes that there was established NAB internet banking xxxx ("the bank account") in the name of the parties.
(j) Orders that the proceeds of the bank account be paid to the Defendants within 14 days of the date hereof.
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Decision last updated: 16 September 2013
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