Buckeridge v Buckeridge

[2018] WASC 187

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BUCKERIDGE  -v- BUCKERIDGE [2018] WASC 187

CORAM:   CHANEY J

HEARD:   30 APRIL 2018 AND ON THE PAPERS

DELIVERED          :   25 JUNE 2018

PUBLISHED           :   25 JUNE 2018

FILE NO/S:   CIV 1960 of 2015

BETWEEN:   LISE FRANCES BUCKERIDGE

Plaintiff

AND

RACHEL JANE BUCKERIDGE

Second Defendant

ANDREW BENJAMIN BUCKERIDGE

Third Defendant

SAMUEL CONRAD BUCKERIDGE

Fourth Defendant

JOSHUA ANTONY BUCKERIDGE

Fifth Defendant

JULIAN THEODORE ROSSLYN AMBROSE

Sixth Defendant

SIOK PUAY KOH

Seventh Defendant

JUDITH CAROLINE LYON

Eighth Defendant

ESPERANCE JOY CATHERINE STEPHEN

Ninth Defendant

ALBA MAY STEPHEN

Tenth Defendant

ANDREW BOON SAN TEO as trustee for THE BUCKERIDGE FAMILY TESTAMENTARY TRUST

Eleventh Defendant

ESTHER LARA BUCKERIDGE

Eighteenth Defendant

SAMUEL CONRAD BUCKERIDGE as trustee for THE BUCKERIDGE FAMILY TESTAMENTARY TRUST

Twelfth Defendant

ALICIA BEATRICE BUCKERIDGE

Twentieth Defendant

SAMUEL CONRAD BUCKERIDGE JULIAN THEODORE ROSSLYN AMBROSE and ANDREW BOON SAN TEO as trustees for THE BUCKERIDGE GRANDCHILDREN TRUST

Thirteenth Defendant

ANDREW BENJAMIN BUCKERIDGE and ANDREW BOON SAN TEO as trustees for THE ANDREW BUCKERIDGE TRUST

Fifteenth Defendant

SAMUEL CONRAD BUCKERIDGE and  ANDREW BENJAMIN BUCKERIDGE as executors of the Will of LEONARD WALTER BUCKERIDGE

First Defendants

ANNA CELESTE BUCKERIDGE

Seventeenth Defendant

HUAN CHE LIN BUCKERIDGE

Nineteenth Defendant

SIOK PUAY KOH and ANDREW BOON SAN TEO as trustees of the KOH FAMILY TESTAMENTARY TRUST

Sixteenth Defendant

SAMUEL CONRAD BUCKERIDGE and ANDREW BOON SAN TEO as trustee for THE SAMUEL BUCKERIDGE TRUST

Fourteenth Defendant

THOMAS AMBROSE

Twenty First Defendant

ORSON LEONARD ROSSLYN AMBROSE

Twenty Second Defendant

Catchwords:

Costs - Compromise of action - All parties acting reasonably - Applicant for costs benefiting from compromise

Legislation:

Family Provision Act 1972 (WA), s 14
Rules of the Supreme Court 1971 (WA), O 66

Result:

No order for costs

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance
Tenth Defendant	:	No appearance
Eleventh Defendant	:	No appearance
Eighteenth Defendant	:	No appearance
Twelfth Defendant	:	No appearance
Twentieth Defendant	:	No appearance
Thirteenth Defendant	:	No appearance
Fifteenth Defendant	:	No appearance
First Defendants	:	No appearance
Seventeenth Defendant	:	No appearance
Nineteenth Defendant	:	No appearance
Sixteenth Defendant	:	No appearance
Fourteenth Defendant	:	No appearance
Twenty First Defendant	:	No appearance
Twenty Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	McLachlan Thorpe Partners
Second Defendant	:	Croftbridge
Third Defendant	:	Culshaw Miller Lawyers
Fourth Defendant	:	Culshaw Miller Lawyers
Fifth Defendant	:	Rigby Cooke Lawyers
Sixth Defendant	:	Murcia Pestell Hillard
Seventh Defendant	:	Williams & Hughes
Eighth Defendant	:	Frichot & Frichot
Ninth Defendant	:	Wojtowicz Kelly Legal
Tenth Defendant	:	Wojtowicz Kelly Legal
Eleventh Defendant	:	Corrs Chambers Westgarth
Eighteenth Defendant	:	Culshaw Miller Lawyers
Twelfth Defendant	:	In person
Twentieth Defendant	:	Culshaw Miller Lawyers
Thirteenth Defendant	:	Williams & Hughes
Fifteenth Defendant	:
First Defendants	:	Kershaw Legal
Seventeenth Defendant	:	Culshaw Miller Lawyers
Nineteenth Defendant	:	Culshaw Miller Lawyers
Sixteenth Defendant	:	Corrs Chambers Westgarth
Fourteenth Defendant	:	Corrs Chambers Westgarth
Twenty First Defendant	:	Murcia Pestell Hillard
Twenty Second Defendant	:	Murcia Pestell Hillard

Case(s) referred to in decision(s):

Bondelmonte v Blanckensee [1989] WAR 305

Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack [2003] NSWCA 302

Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84

Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622

Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201

CHANEY J:

1. These proceedings involved claims by the plaintiff, second, fifth, seventh, ninth and tenth defendants pursuant to the Family Provision Act 1972 (WA) in relation to the will of Leonard Walter Buckeridge made 10 June 2008. Mr Buckeridge's estate was unusually large, but principally consisted of his interests in the business conducted by a corporation. Not surprisingly, the dispositions in his will were relatively complex.

2. After a lengthy private mediation process, the parties reached a negotiated settlement as to appropriate amendments of the deceased's will.  The agreement between the parties was recorded in a minute of consent orders and a heads of agreement.  The settlement provided for a very substantial additional provision being made for the seventh defendant, but did not finally resolve the seventh defendant's claim for provision.

3. On 23 February 2018, having received extensive submissions from the parties and being satisfied as to what is often referred to as the 'jurisdictional question' in relation to family provision applications, namely whether the applicants had been left without adequate provision for their proper maintenance, support, education or advancement in life,[1] I made orders in terms of the minute of consent orders (consent orders).  The chapeau to the orders recited that, it having been agreed that an additional provision in the sum specified in the orders should be made from the will of the deceased in favour of the seventh defendant, 'there remains an issue between them for agreement or determination as to whether there should be any further provision for the seventh defendant pursuant to the Family Provision Act ('the Issue'). The lengthy consent orders then set out the amendments to the will reflecting the terms of the settlement.

   [1] Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201, 208 - 209; Bondelmonte v Blanckensee [1989] WAR 305, 307.

4. In relation to costs of the proceedings, order 4 of the consent orders provided:

   With respect to the costs of the proceedings to date:

   (a)the first defendants are entitled to their costs of the proceedings pursuant to O 66 r 9(2);

   (b)there be no orders as to the costs of Andrew Teo;

   (c)the costs of the seventh defendant be reserved to the hearing of the Issue; and

   (d)save as mentioned in (a), (b) and (c) the parties shall each bear their own costs of the proceedings to date.

5. Order 5 provided:

   With respect to any future costs in relation to determination of the Issue:

   (a)as to the first defendant will be paid in accordance with an order of the court;

   (b)will otherwise be determined only as between the third, fourth, seventh, fourteenth and fifteenth defendants ('Continuing Parties'); and

   (c)shall not be sought by any of those Continuing Parties against any of the other parties to the action.

6. The effect of the consent orders was thus to resolve all matters between the parties save for the question of whether any further provision should be made in favour of the seventh defendant.

7. In order to progress the seventh defendant's further claim, a strategic conference was held on 30 April 2018. Shortly prior to that conference, the seventh defendant's solicitors filed a position paper in which it was stated that the seventh defendant was prepared to agree that there be no further determination made in relation to the Issue and suggesting that, as it was unlikely that any party other than the seventh defendant would wish to suggest that further provision should be made for her, 'the matter may thus be resolved by agreement'. The minute foreshadowed that an order should be made programming the determination of the question of costs effecting the seventh defendant generally. At the strategic conference, I made orders that the question of the seventh defendant's costs which were to be reserved to the hearing of the Issue be determined on the papers, and putting in place a timetable for submissions. Those submissions have now been filed.

8. The seventh defendant submits that she should be entitled to an order that her costs of the proceedings up until the date of the orders be paid to her out of the estate.  The plaintiff, first, second, third, fourth and fifth defendants all filed submissions opposing the seventh defendants' application and contending that the seventh defendant should bear her own costs of the proceedings.  The first defendants also contend that there should be an order that the seventh defendant pay the first defendants' costs of the proceedings as and from 23 February 2018, including her application for leave to discontinue, to be taxed if not agreed, or alternatively submit that their costs should be met from the estate.

The nature of the seventh defendant's application

1. The seventh defendant notes that the consent orders expressly provide that the Issue may be agreed between the parties or determined by the court. She contends that, as she is prepared to agree that no further determination be made, and that given no other party seeks any further provision in her favour, the Issue 'must be deemed to have been resolved by agreement'. The plaintiff and the first defendants contend that, in substance and effect, the Issue, being all that remained to be determined in the proceedings, has been abandoned by the seventh defendant, and accordingly she requires leave to discontinue the proceedings.

2. In my view, the plaintiff's and the first defendants' characterisation of the position is to be preferred. But for the reservation of the Issue all claims to further provision from the estate of the deceased were resolved by the consent orders. What remained of the action was the seventh defendant's claim for further provision. She has abandoned that claim, and done so unilaterally.

3. The plaintiff contends that it is open to construe the words of consent order 4(c) as requiring that the seventh defendant's application for a costs order only be determined at the hearing of the Issue, and that without such a hearing taking place, the position with respect to the seventh defendant's costs then defaults to order 4(d), with the result that she bears her own costs of the proceedings to date. She contends that if order 4(c) is construed to reserve the costs of the seventh defendant generally, the remaining words in order for (c) 'to the hearing of the Issue' would have no work to do. I do not accept that construction. In my view, the substantive operation of order 4(c) was to reserve the question of the costs of the seventh defendant. The reference to that question being determined at the hearing of the Issue is no more than procedural in effect. That is, the order contemplated that the appropriate time for resolution to the question for the seventh defendant's costs would be when her claim was finally determined. Order 4 operates in relation to the costs of the parties 'of the proceedings to date'. I am satisfied that the question of the seventh defendant's costs of the proceedings to date was an issue left unresolved by the consent orders. That view is reinforced by order 7 of the consent orders. That order provided that the parties other than the Continuing Parties would abide the decision of the court and were not required to take any further part in the trial of the Issue save that order 7(d) provided:

   The provisions of paragraph (a)(i), (b) and (c) hereof shall not apply in relation to the seventh defendant's costs of the proceedings to date, as reserved pursuant to paragraph 4(c) above.

The proper approach to the seventh defendant's costs

1. Section 14(6) of the Family Provision Act provides the court may make such orders as to costs proceedings under the Act as it deems just.

2. In Re Minister for Immigration & Ethnic Affairs,[2] McHugh J said:

   In most jurisdictions today, the power to order costs is a discretionary power.  Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs.  Success in the action or on particular issues is the fact that usually controls the exercise of the discretion.  A successful party is prima facie entitled to a costs order.  When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.

   In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action.  The court cannot try a hypothetical action between the parties.  To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided.  In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action (citations omitted).

   [2] Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622; (624).

3. Mc Hugh J also noted that in some cases a judge may feel confident that, although parties have acted reasonably, one party was almost certain to have succeeded had the matter been tried, and in those circumstances costs in favour of the party which would have succeeded might be ordered.  He described such cases as likely to be rare.[3]

   [3] Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (625).

4. Order 66 r 1 of the Rules of the Supreme Court 1971 (WA) provides that the court will generally order that the successful party to any action recover costs from the unsuccessful party. The position where parties resolve their differences by agreement was recently discussed by the Court of Appeal in New South Wales in Nichols v NFS Agribusiness Pty Ltd,[4] where Basten JA said:

   Where the parties resolve their differences, except as to the costs already incurred in litigation, they should usually expect that the court will not award costs.  That is because the general rule applicable in civil litigation in superior courts is that costs will follow the event.  That rule is frequently paraphrased by reference to its purpose, namely that the successful party should generally recover its costs from the unsuccessful party.  But where there has been no trial there is no event because, except in unusual cases, it is not possible to say that one party has been successful and the other unsuccessful.  The orders made by consent may or may not demonstrate capitulation by the unsuccessful party.

   [4] Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84.

5. In that case, Payne JA referred with approval to the observations of Davies AJA with whom Mason P and Meagher JA agreed in Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack[5] that:

   When proceedings are brought to an end without a determination after a trial, the judge may find it difficult, even impossible, to make an award of costs.  If the judge does make an award, it will generally be because the judge is satisfied that one party has had a substantial victory and the other a substantial loss, or that there has been a marked difference in the reasonableness of the actions taken by the parties, so that one party should be rewarded for its reasonable actions and the other party should suffer a detriment in costs.

   [5] Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack [2003] NSWCA 302 [5].

6. The seventh defendant contends that she has had a substantial victory in that a significant additional provision was made for her as a result of the settlement reflected in the consent orders.  She contends that no other party enjoyed the same measure of success in absolute or relative terms.

7. While the additional provision made for the seventh defendant is undoubtedly very substantial, it cannot be said that the actions of any of the other parties, including the executors, were in any sense unreasonable.  The proceedings involved a very substantial estate and complicated provisions in the will.  The resolution achieved through a lengthy, and no doubt complicated, mediation process evidences a constructive and reasonable approach taken to the resolution of the complex dispute.  If provision were to be made for the payment of the seventh defendant's costs from the estate, the practical effect would be that those costs would be borne by those parties who are residual beneficiaries to the estate.  It is neither possible, nor appropriate, for the court to assess the basis upon which the parties reached the agreement which they did.  There is no basis to conclude that the just outcome in relation to the costs of the seventh defendant is that they should be borne by the residual beneficiaries who have participated in the action and in its resolution in an apparently constructive and reasonable manner.

8. In the circumstances, I consider it appropriate that the seventh defendant, like all other parties to the proceedings other than the first defendants as executors, should bear her own costs.

Costs since 23 February 2018

1. The only step taken in the proceedings after the consent orders were made was the holding of a strategic conference.  At that point, the seventh defendant communicated her decision not to proceed with her application for further provision.  In those circumstances, her conduct cannot be said to be unreasonable, and save for the submissions in relation to costs, the costs after 23 February 2018 would appear to be minimal.

2. The entitlement to be heard in relation to the seventh defendant's costs was specifically provided for in the orders of 23 February 2018. In my view consistent with the agreement reached in relation to the costs of the proceedings to 23 February 2018, it is appropriate that each party bear their own costs, save for the first defendants who are entitled to their costs pursuant to O 66 r 9(2) of the Rules of the Supreme Court.

Proposed orders

1. For the foregoing reasons, I consider that it is appropriate that the following orders be made:

   (1)The seventh defendant's application by notice of motion dated 17 July 2015 is discontinued.

   (2)The first defendants' costs of the proceedings as and from 23 February 2018 be paid from the estate pursuant to O 66 r 9(2) of the Rules of the Supreme Court.

   (3)There be no order for costs of the seventh defendant up until 23 February 2018.

   (4)The parties otherwise bear their own costs of the proceedings as from 23 February 2018 including the costs of the application by the seventh defendant for costs.

   I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

   TS
   ASSOCIATE TO THE HONOURABLE JUSTICE CHANEY

   28 JUNE 2018