DW v RW (No 2)

The case of DW v RW (No 2) involved a dispute over costs in a family provision application. The applicant, DW, sought provisions from the estate of JW, with the respondent, RW, contesting the claim. The court was tasked with determining the appropriate costs order between the parties, considering whether the costs should follow the event or if an alternative order should be made. Additionally, the court had to decide whether the costs should be capped or fixed.

The primary legal issue before the court was the assessment of costs in family law proceedings, specifically within the context of a family provision application. The court needed to balance the principle that costs should generally follow the event with the need to protect the estates of the parties involved. The court also had to consider whether capping the costs was appropriate to prevent the dissipation of the estate.

The court held that the respondent's costs should be assessed on an indemnity basis but capped at $80,000. Similarly, the applicant's costs were also to be assessed on an indemnity basis but similarly capped at $80,000. Both sets of costs were to be paid out of the estate of JW. The court reasoned that while the principle of costs following the event was important, it was necessary to protect the estates from excessive costs that could potentially deplete the available assets. The court found that capping the costs at $80,000 was a fair and proportionate measure in the circumstances.

The final orders of the court were that the respondent's costs of and incidental to the proceedings be assessed on an indemnity basis but capped at $80,000, and that these costs be paid out of the estate of JW. Similarly, the applicant's costs of and incidental to the proceedings were to be assessed on an indemnity basis but capped at $80,000, with these costs also being paid out of the estate of JW. The parties were granted liberty to apply for further orders if necessary.