Browne v Macaulay (Executrix of the Will of the late John Henry Craig Macaulay)

The case involved John Henry Browne, the son of the deceased John Henry Craig Macaulay, who sought provision from his father's estate under the Inheritance (Family and Dependants Provision) Act 1972 (WA). Browne made an application for the Joel Terrace property, which was part of the residuary estate, to be provided to him. The court ordered the provision of the Joel Terrace property to Browne. Browne also sought additional orders for the accounting of income derived from the property since the date of death and for the payment of that income to him. The court declined to make such orders, finding that the Act does not provide for an order to have retrospective effect.

The court was required to decide whether the Inheritance Act empowered the making of an order with retrospective effect and whether Browne should be deprived of his costs despite being successful in his application. The court held that the Act does not confer the power to make an order with retrospective effect and that there was no clear indication that such a capacity may be derived by necessary implication from the terms of the Act. The court also considered the defendants' submissions regarding an offer to settle the matter before proceedings were instituted. The court found that Browne had not behaved unreasonably in the matter and should not be deprived of his costs.

The court ordered the second, third and fourth defendants to pay Browne's costs to be taxed with a certificate for second counsel.