BUTCHER v CRAIG
[2010] WASCA 92 (S)
•17 MAY 2010
BUTCHER -v- CRAIG [2010] WASCA 92 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASCA 92 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:76/2009 | 15 MARCH 2010 AND ON THE PAPERS | |
| Coram: | PULLIN JA NEWNES JA MURPHY JA | 17/05/10 | |
| 13/10/10 | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appellant's costs of the trial and appeal to be taxed on a partyparty basis | ||
| B | |||
| PDF Version |
| Parties: | RONALD JAMES BUTCHER DELYS JOAN CRAIG as Executor of the Estate of Elsja Henrietta Charlotte BUTCHER (Dec) DELYS JOAN CRAIG TRIGG ALEXANDER CRAIG ELSJA ELIZABETH CRAIG MANSON BASIL CRAIG |
Catchwords: | Inheritance Act Costs Whether costs should be ordered on a solicitorclient basis |
Legislation: | Inheritance (Family and Dependants Provision) Act 1972 (WA), s 14(6) |
Case References: | Adkins v Adkins (No 2) [2009] TASSC 32 Anfrank Nominees Pty Ltd v Connell (1991) 6 WAR 271 AWA v Daniels (Unreported, NSWSC, 8 October 1992) Bentley v Brennan; Re Bull, deceased (No 2) [2006] VSC 226 Bouras v Grandelis [2005] NSWCA 463; (2005) 65 NSWLR 214 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Collins v Westralian Sands Ltd (1993) 9 WAR 56 Cuplovic v Sacilotto [2001] WASC 360 Curran v Duncan as Executor for the Will of Jean Frances Hogg (Dec) [2006] WASC 9 (S) Dehnert v The Perpetual Executors & Trustees Association of Australasia Ltd [1954] HCA 47; (1954) 91 CLR 177 Flotilla Nominees Pty Ltd v Western Australia Land Authority [2003] WASC 122; (2004) 28 WAR 95 Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 In Re Bennett [1909] VLR 205 In the Will and Codicils of Read, deceased [1910] VLR 68 In the Will of Mailes [1908] VLR 269 Johnston as Executor of the Will of Elsie Birks v Marsh (Unreported, WASC, Library No 990207, 23 April 1999) Kitson v Franks [2001] WASCA 134 (S) Lathwell v Lathwell [2008] WASCA 256 (S) Lawrence v Lawrence [2004] WASC 90 (S) Marks v Williams as Executor of the Will of the Deceased [2002] WASC 197 Nelson v Nelson [1999] WASCA 302 Owen v The Public Trustee for the State of Western Australia as Executor of the Will of Arthur Owen (Dec) [2006] WASC 276 Pogorelic v Banovich [2007] WASC 45 (S) Re Bond Corporation Holdings Ltd (1990) 1 WAR 465 Roadshow Films v iinet (No 4) [2010] FCA 645 Roche v Varnavides In His Capacity as Executor of the Estate of the late Lillian Rose Varnavides [2004] WASC 164 (S) Szombathy v The Public Trustee as Executor of the Estate of Margit Lidia Szombathy (Dec) [2002] WASC 89 Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 18 WAR 190 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BUTCHER -v- CRAIG [2010] WASCA 92 (S) CORAM : PULLIN JA
- NEWNES JA
MURPHY JA
DECISION : 13 OCTOBER 2010 FILE NO/S : CACV 76 of 2009 BETWEEN : RONALD JAMES BUTCHER
- Appellant
AND
DELYS JOAN CRAIG as Executor of the Estate of Elsja Henrietta Charlotte BUTCHER (Dec)
First Respondent
DELYS JOAN CRAIG
Second Respondent
TRIGG ALEXANDER CRAIG
Third Respondent
ELSJA ELIZABETH CRAIG
Fourth Respondent
MANSON BASIL CRAIG
Fifth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : BUTCHER -v- CRAIG [2009] WASC 164
File No : CIV 1886 of 2006
Catchwords:
Inheritance Act - Costs - Whether costs should be ordered on a solicitorclient basis
Legislation:
Inheritance (Family and Dependants Provision) Act 1972 (WA), s 14(6)
Result:
Appellant's costs of the trial and appeal to be taxed on a partyparty basis
Category: B
(Page 3)
Representation:
Counsel:
Appellant : Mr L A Tsaknis
First Respondent : No appearance
Second Respondent : Mr A Metaxas
Third Respondent : Mr A Metaxas
Fourth Respondent : Mr A Metaxas
Fifth Respondent : Mr A Metaxas
Solicitors:
Appellant : Minter Ellison
First Respondent : No appearance
Second Respondent : Metaxas & Hager
Third Respondent : Metaxas & Hager
Fourth Respondent : Metaxas & Hager
Fifth Respondent : Metaxas & Hager
Case(s) referred to in judgment(s):
Adkins v Adkins (No 2) [2009] TASSC 32
Anfrank Nominees Pty Ltd v Connell (1991) 6 WAR 271
AWA v Daniels (Unreported, NSWSC, 8 October 1992)
Bentley v Brennan; Re Bull, deceased (No 2) [2006] VSC 226
Bouras v Grandelis [2005] NSWCA 463; (2005) 65 NSWLR 214
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Collins v Westralian Sands Ltd (1993) 9 WAR 56
Cuplovic v Sacilotto [2001] WASC 360
Curran v Duncan as Executor for the Will of Jean Frances Hogg (Dec) [2006] WASC 9 (S)
Dehnert v The Perpetual Executors & Trustees Association of Australasia Ltd [1954] HCA 47; (1954) 91 CLR 177
Flotilla Nominees Pty Ltd v Western Australia Land Authority [2003] WASC 122; (2004) 28 WAR 95
Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
In Re Bennett [1909] VLR 205
In the Will and Codicils of Read, deceased [1910] VLR 68
In the Will of Mailes [1908] VLR 269
(Page 4)
Johnston as Executor of the Will of Elsie Birks v Marsh (Unreported, WASC, Library No 990207, 23 April 1999)
Kitson v Franks [2001] WASCA 134 (S)
Lathwell v Lathwell [2008] WASCA 256 (S)
Lawrence v Lawrence [2004] WASC 90 (S)
Marks v Williams as Executor of the Will of the Deceased [2002] WASC 197
Nelson v Nelson [1999] WASCA 302
Owen v The Public Trustee for the State of Western Australia as Executor of the Will of Arthur Owen (Dec) [2006] WASC 276
Pogorelic v Banovich [2007] WASC 45 (S)
Re Bond Corporation Holdings Ltd (1990) 1 WAR 465
Roadshow Films v iinet (No 4) [2010] FCA 645
Roche v Varnavides In His Capacity as Executor of the Estate of the late Lillian Rose Varnavides [2004] WASC 164 (S)
Szombathy v The Public Trustee as Executor of the Estate of Margit Lidia Szombathy (Dec) [2002] WASC 89
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 18 WAR 190
(Page 5)
1 PULLIN JA: On 17 May 2010, this court allowed an appeal by the appellant against a decision of Master Sanderson and ordered that the deceased's will be altered to make further provision for the appellant. The appellant then sought costs on a solicitor-client basis to be paid out of the estate. This order was opposed by the respondents.
2 The court called for written submissions from the parties with the decision to be made on the papers. The respondent recently advised the court that it now agreed that costs should be paid out of the estate. As a result, the only issue is whether costs should be taxed on a solicitor-client basis.
Appellant's submissions
3 The appellant submitted that the standard order was that a successful party in an application under the Inheritance (Family and Dependants Provision) Act1972 (WA) be awarded costs on a solicitor-client basis. In support of the submission, the appellant referred to De Groot and Nickel, Family Provision in Australia (2007, 3rd edition) [10.2] which states that:
In Australia, the courts from the beginning made what might be described as a 'standard order' where an applicant was successful. The order was that the costs of all parties were to be taxed on a solicitor-client basis and paid out of the estate.
4 The appellant referred to Bentley v Brennan; Re Bull, deceased (No 2) [2006] VSC 226 [3] and the cases cited therein, some dating back to the early 1900s, where an order was made that a successful plaintiff should be paid costs on a solicitor-client basis out of the estate. The cases cited in Bentley v Brennan include Inthe Will of Mailes [1908] VLR 269, 270 (A'Beckett J), InRe Bennett [1909] VLR 205, 207 (A'Beckett J) and Inthe Will and Codicils of Read, deceased [1910] VLR 68, 72 (A'Beckett J). There are more cases cited in footnote 1 to the paragraph in De Groot and Nickel. No Western Australian cases were referred to. In Bentley v Brennan[3], Byrne J approved the statement in De Groot and Nickel and said that 'this has become so common that it has been described as "the standard order"'.
5 The appellant also referred to Dehnert v The Perpetual Executors & Trustees Association of Australasia Ltd [1954] HCA 47; (1954) 91 CLR 177, in which the High Court allowed an appeal in an inheritance matter and ordered that the appellant's costs be taxed on a solicitor-client basis. Similarly, in Hughes v National Trustees Executors and Agency Co of
(Page 6)
- Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, the High Court ordered that the appellant's costs be taxed on a solicitor-client basis.
Respondents'submissions
6 The respondents conceded that orders for costs on a solicitor-client basis are often made by consent, but submitted this did not mean that it was the appropriate order if costs are not agreed. The respondent submitted that costs are only awarded on a solicitor-client basis if there is some factor justifying such an order.
7 The respondents referred to Kitson v Franks[2001] WASCA 134 (S) [5] where the Full Court said (in relation to the question of costs where an applicant had failed) that costs in an Inheritance Act matter may be significantly influenced by the circumstances of the case, and that there is no fixed rule. The Full Court also referred to Western Australian decisions where there had been orders for party-party costs, namely Cuplovic v Sacilotto [2001] WASC 360 (Master Bredmeyer) and Szombathy v The Public Trustee as Executor of the Estate of Margit Lidia Szombathy (Dec) [2002] WASC 89 (Master Bredmeyer).
8 The respondents referred to the following Western Australian decisions in which costs were awarded out of the estate with no specification whether the costs were on a solicitor-client basis or a party-party basis: Johnston as Executor of the Will of Elsie Birks v Marsh(Unreported, WASC, Library No 990207, 23 April 1999); Marks v Williams as Executor of the Will of the Deceased [2002] WASC 197; Roche v Varnavides In His Capacity as Executor of the Estate of the late Lillian Rose Varnavides [2004] WASC 164 (S); Lawrence v Lawrence[2004] WASC 90 (S); Curran v Duncan as Executor for the Will of Jean Frances Hogg (Dec) [2006] WASC 9 (S); Owen v The Public Trustee for the State of Western Australia as Executor of the Will of Arthur Owen (Dec)[2006] WASC 276; Pogorelic v Banovich [2007] WASC 45 (S).
9 The respondents submitted that in Western Australia, with the exception of certain items in the Scale of Costs, and where no costs agreement has been entered into, there should be no difference between the items and amounts allowed under a party-party bill of costs and a solicitor-client bill of costs: Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 18 WAR 190; Anfrank Nominees Pty Ltd v Connell (1991) 6 WAR 271, 284; Collins v Westralian Sands Ltd (1993) 9 WAR 56, 64. The respondents submitted that an order for indemnity costs has less significance in Western Australia than in other jurisdictions
(Page 7)
- and will only be made if there is some special or unusual feature in the case to justify departure from the ordinary practice: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 233.
10 The respondents acknowledged the existence of decisions from other jurisdictions in which costs were awarded on an indemnity basis but submitted that these revealed something in the circumstances justifying such an order (Adkins v Adkins (No 2) [2009] TASSC 32). The respondents acknowledged that the executor may be awarded indemnity costs or costs on a solicitor-client basis out of the estate of the deceased (as to which see Lathwell v Lathwell [2008] WASCA 256 (S)).
11 The respondents submitted that there was nothing before the court in this case to justify anything other than an order that costs be taxed on a party-party basis.
The court's discretion to award costs
12 The court is given the power to award costs under s 14(6) of the Inheritance Act which reads:
The Court may make such order as to the costs of any proceeding under this Act as it deems just.
- That provision does not justify a court imposed restriction on the discretion conferred. It confers on the court 'a very wide discretion': Nelson v Nelson[1999] WASCA 302 [2]. Order 66 r 11(2) of the Rules of the Supreme Court 1971 (WA) states that, in the absence of a costs agreement between a solicitor and client, the Supreme Court Scale applies to both party-party and solicitor-client costs: Unioil International Pty Ltd v Deloitte Touche Tohmatsu (191). Thus, in the absence of a costs agreement, there should not be any significant difference between solicitor-client costs and party-party costs. A difference may occur where the client of one party demands a much higher degree of attention than would reasonably be justified by the circumstances of the case.
13 Usually, where indemnity costs are awarded there has been some improper or unreasonable conduct by the parties or their lawyers: Flotilla Nominees Pty Ltd v Western Australia Land Authority[2003] WASC 122; (2004) 28 WAR 95 [9]. Even if there has been unreasonable conduct, an indemnity costs order will not be made if the costs would be covered by a party-party costs order: Flotilla v Western Australian Land Authority[11]. An order that costs be taxed on a solicitor-client basis is ordinarily in the nature of an order for indemnity costs although the
(Page 8)
- measure of indemnity under an order simply for solicitor-client costs may be somewhat uncertain: R Quick and D Garnsworthy, Quick on Costs (2010) [4.210]; Re Bond Corporation Holdings Ltd (1990) 1 WAR 465, 479; Bouras v Grandelis [2005] NSWCA 463; (2005) 65 NSWLR 214 [94] - [96], [109]; AWA v Daniels (Unreported, NSWSC, 8 October 1992),referred to in Roadshow Films v iinet (No 4) [2010] FCA 645 [75]. Given the scope for ambiguity in such an order, it is preferable, if indemnity costs are intended, that the order be made in terms which expressly stipulate the content of the order, as in Re Bond Corporation Holdings Ltd (479). Under such an order, costs unreasonably incurred would not be recoverable: Flotilla [28].
14 The local cases cited by the parties reveal no usual practice and the existence of no principle in this State that costs in this type of case should ordinarily be taxed on a solicitor-client basis. The statement in De Groot and Nickel set out above is accurate in the sense that it points out that 'courts from the beginning' (at least in some States) made orders that costs be taxed on a solicitor-client basis. The authors do not, however, suggest that there is any case explaining why such an order should be made and no case was drawn to this court's attention explaining why a successful applicant should have costs taxed on a solicitor-client basis in the absence of any unreasonable or improper conduct on the part of the respondents.
The appellant's late application for a special costs order
15 In the course of the appellant's written submissions, an application was made by the appellant for a special order removing the limit under item 11 of the Supreme Court Scale of Costs. Section 280(2) of the Legal Profession Act 2008 (WA) provides:
Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following -
(a) order the payment of costs above those fixed by the determination;
(b) fix higher limits of costs than those fixed in the determination;
(c) remove limits on costs fixed in the determination;
(d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.
(Page 9)
16 The only liberty given to the parties was to file submissions about the issue of whether costs should be paid out of the estate or on a solicitor-client basis. No leave was granted to make a fresh application. In any event, the appellant has not filed any material which would justify the lifting of the limit. The only submissions made by the appellant were that the court has authority to make such an order (which is not in doubt) and that expert evidence was adduced from seven witnesses. The appellant referred to Pogorelic v Banovich [24]. In that case, Master Newnes ordered that the limit in item 11 be lifted based on the nature of the hearing and the fact that it ran for three days. This shows that at first instance where the judicial officer is closely acquainted with all of the material and the way the case was conducted, it may not be necessary to provide a great deal of evidence as to the difficulty or complexity of the case. The situation is not necessarily the same on appeal because the court is not always taken to all the evidence.
17 The respondents filed submissions in which it was said that the case was opened on 24 June 2008, that the respondents gave evidence on the same day, that the case was adjourned part heard towards the end of that day and, on 17 February 2009, the respondents called one other witness and then closed the case. The respondents say this was followed on the same day by some further evidence from three witnesses for the appellant, that that evidence was completed just after midday on that second day and that addresses were completed that afternoon. The respondents also submitted that a number of the affidavits filed by the appellant were unnecessarily long, covered similar material and were not relevant to the case. Further, the respondents say they successfully applied to strike out a number of parts of these affidavits. The respondents also submitted that the significant volume of paper on the court file was the product of the appellant failing to file affidavits complying with the rules, filing unnecessary affidavits and also filing affidavits on an issue which never had any prospect of success. It is not possible to assess the strength of all these assertions. All that it is necessary to say is that it is not possible to be satisfied that a special costs order should be made based merely on a statement by the appellant that seven witnesses were called.
Conclusion
18 The order should be that the appellant's costs of the trial and of the appeal be taxed on a party-party basis and paid out of the estate. It is appropriate to accede to the parties' agreement that costs be paid out of the estate only because all of the beneficiaries under the will are parties to the
(Page 10)
- litigation. The parties are also agreed that the respondents' costs also be paid out of the estate. As a result, the orders should be:
(1) The appellant's costs of this appeal be taxed and paid out of the estate.
(2) The appellant's costs of the originating application be taxed and paid out of the estate.
(3) The second, third, fourth and fifth respondents' costs of this appeal and of the originating application be taxed and paid out of the estate.
19 NEWNES JA: I agree with Pullin JA.
20 MURPHY JA: I agree with Pullin JA.
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