Bosschieter v Howitt

The case of Bosschieter v Howitt involved the plaintiff, an equal beneficiary of a deceased estate, who sought further provision from the estate under the Succession Act 2006. The defendant, who was the executor of the estate, had previously succeeded in setting aside a gift of $200,000 made by the deceased to the plaintiff shortly before death. The plaintiff’s claim for further provision was successful only in compensating her for the value of the estate's chose in action to set aside the $200,000 gift but otherwise failed. The court reserved the costs of the proceedings.

The primary legal issues before the court were whether any costs order should be made in favour of the plaintiff, whether a costs order should be made in favour of the defendant, and whether the plaintiff should bear her own costs of the proceedings. The court considered the principles of costs in relation to unsuccessful applications for further provision, and the overall outcome of the proceedings. The court also took into account the nature of the dispute and the respective positions of the parties.

The court determined that the plaintiff’s claim for further provision was largely unsuccessful, with the only successful aspect being the compensation for the value of the chose in action. The court held that the plaintiff was not entitled to an order for costs against the estate or the defendant. Instead, the court ordered that the plaintiff bear her own costs of the proceedings. The court based its decision on the overall outcome of the proceedings and the respective positions of the parties, including the limited success of the plaintiff’s claim.

The final orders of the court were that no costs order be made in favour of the plaintiff, no costs order be made in favour of the defendant, and that the plaintiff bear her own costs of the proceedings. The court's decision provided clarity on the costs implications for unsuccessful applications for further provision under the Succession Act 2006.