Daniel v Van Zwol

The parties to this matter were the appellant, who was the executrix and a beneficiary of an estate, and the first respondent, who was a beneficiary claiming under the Inheritance (Family Provision) Act 1972 (SA). The dispute concerned the costs of an appeal to the Supreme Court of South Australia following a decision by a master regarding the distribution of the estate. The master had allowed the first respondent's claim for provision from the estate, awarding him a sum that, due to subsequent costs orders, resulted in him receiving a greater share of the residue than the other beneficiaries. The appellant appealed this decision in her personal capacity.

The legal issues before the Court were whether the general rule that costs follow the event should apply to the appeal, and if so, to what extent, and how the costs of the appeal should be ordered. Specifically, the Court had to determine whether the appellant, despite a limited success on appeal in adjusting the calculation of the award, had substantially failed in her appeal, and whether her costs should be paid out of the estate or borne personally. The Court also considered the first respondent's application for costs against the appellant personally.

The Court reasoned that while the appeal was allowed to a limited extent by adjusting the method of calculating the first respondent's legacy to correct an anomaly, the appellant had not succeeded on the substantive grounds of her appeal. The Court found that the appeal had, in substance, left the master's decision largely undisturbed and that the appellant had acted in her own personal interest in bringing the appeal. Applying the principle that costs generally follow the event in unsuccessful appeals, and considering the appellant's personal capacity and lack of success, the Court determined that the appellant should bear her own costs. Furthermore, the Court ordered that the appellant, in her personal capacity, pay 90 per cent of the first respondent's costs of the appeal on a party-party basis, with a 10 per cent reduction to account for the first respondent's submissions during oral argument. The Court declined to order that the appellant's costs be paid out of the estate.