Friend v Brien (No 2)

In Friend v Brien (No 2), the plaintiff, Friend, sought family provision from the estate of her deceased mother, who was the defendant's wife. The defendant, Brien, resisted the claim. The case was heard in the Supreme Court of New South Wales. The dispute centred on the appropriate allocation of costs in light of the plaintiff's unsuccessful family provision claim and the subsequent conduct of the parties.

The court had to determine whether the plaintiff's offer of compromise complied with the requirements of the Uniform Civil Procedure Rules r 42.15A. It also had to consider whether the family provision claims warranted special principles regarding costs. Further, the court examined whether the conduct of the second defendant, who was the executor of the estate, should impact the costs order. Lastly, the court had to decide whether an order capping costs was appropriate.

The court found that the plaintiff's offer of compromise did not comply with r 42.15A. However, the court acknowledged that family provision claims warranted special consideration due to the personal and often contentious nature of the disputes. The court noted the second defendant's conduct during the proceedings and determined that it warranted an order for indemnity costs against the plaintiff. The court also considered that a costs cap would be appropriate given the nature of the claim and the conduct of the parties. Consequently, the court ordered that the plaintiff pay costs on the ordinary basis up until the letter of compromise and thereafter on the indemnity basis, with a cap on the total costs recoverable.

The final orders of the court were that the plaintiff was to pay the defendants' costs on the ordinary basis up until the date of the letter of compromise and thereafter on the indemnity basis, with a cap on the total costs recoverable.