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
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CaseChat Overview and Summary
In Butcher v Craig, the matter before the court was an appeal concerning the distribution of an estate under the Inheritance (Family Provision) Act 1982. The deceased, Mr Craig, passed away leaving an estate that was to be divided among his surviving relatives. The appellant, Butcher, sought a larger provision from the estate than that which was ordered by the trial judge. The decision was heard in the Supreme Court of New South Wales, Appeal Division.
The central legal issue before the court was whether the costs of the trial and the appeal should be ordered on a solicitor-client basis or a party-party basis. The appellant argued that the costs should be apportioned on a solicitor-client basis, contending that such an order was more just and equitable given the nature of the proceedings. The respondent, on the other hand, submitted that the traditional party-party basis was appropriate as it reflected the adversarial nature of the litigation and the resources each party brought to bear. The court was required to determine which approach was more suitable under the circumstances of this case.
The court found that the solicitor-client basis was not the appropriate method for awarding costs in this case. It held that the traditional party-party basis was more reflective of the actual expenditure incurred by the parties in the litigation process. The court emphasised that the nature of the family provision claims, which often involve complex personal and financial considerations, did not warrant a departure from the standard cost orders. Consequently, the appeal was dismissed, and the appellant's costs for both the trial and the appeal were to be taxed on a party-party basis.
The final orders of the court mandated that the costs of the appellant's trial and appeal were to be assessed and taxed on a party-party basis. This decision ensured that the financial burden of the litigation was allocated according to the resources each party had engaged in the proceedings, rather than the fees paid to their legal representatives.
The central legal issue before the court was whether the costs of the trial and the appeal should be ordered on a solicitor-client basis or a party-party basis. The appellant argued that the costs should be apportioned on a solicitor-client basis, contending that such an order was more just and equitable given the nature of the proceedings. The respondent, on the other hand, submitted that the traditional party-party basis was appropriate as it reflected the adversarial nature of the litigation and the resources each party brought to bear. The court was required to determine which approach was more suitable under the circumstances of this case.
The court found that the solicitor-client basis was not the appropriate method for awarding costs in this case. It held that the traditional party-party basis was more reflective of the actual expenditure incurred by the parties in the litigation process. The court emphasised that the nature of the family provision claims, which often involve complex personal and financial considerations, did not warrant a departure from the standard cost orders. Consequently, the appeal was dismissed, and the appellant's costs for both the trial and the appeal were to be taxed on a party-party basis.
The final orders of the court mandated that the costs of the appellant's trial and appeal were to be assessed and taxed on a party-party basis. This decision ensured that the financial burden of the litigation was allocated according to the resources each party had engaged in the proceedings, rather than the fees paid to their legal representatives.
Orders
Orders of the court
Appellant's costs of the trial and appeal to be taxed on a partyparty basis
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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