Carey v Robson (No 2)

In this case, the respondent sought to have costs orders made against the appellant in relation to a family provision claim. The appeal was dismissed by the Supreme Court of Queensland, and the matter now proceeds to the High Court. The respondent claimed against the estate of the appellant’s father, who had died intestate, and sought to have the appellant ordered to pay costs out of the estate or, alternatively, that no adverse costs order be made. The appellant argued that the costs incurred by the respondent were excessive and should not be paid out of the estate.

The central legal issue before the court was whether the respondent’s costs should be paid out of the estate, or if no adverse costs order should be made, and whether the costs should follow the event. The court had to consider the discretionary factors relevant to such a decision, including the nature of the dispute, the conduct of the parties, and the Practice Note SC Eq 7. The Practice Note provides guidance on the court's approach to costs in family provision claims.

The court found that the respondent's costs were excessive and that the appellant should not be ordered to pay these costs out of the estate. The court noted that the respondent had incurred significant costs in pursuing the family provision claim, but held that these costs should not follow the event. The court considered the discretionary factors, including the conduct of the parties and the significance of the Practice Note SC Eq 7. Ultimately, the court decided that no adverse costs order should be made, and the costs incurred by the respondent should not be paid out of the estate. The court emphasised the importance of ensuring that the costs orders are proportionate and just in the circumstances of the case.