Green v Ellul (No 3)

The case of *Green v Ellul (No 3)* involved an appeal to the Full Court of the Supreme Court of South Australia concerning costs orders made in interlocutory proceedings related to a family provision claim. The appellants were the executors of an estate, and the respondents were claimants seeking provision from that estate. The dispute arose from the respondents' failure to serve their application within the statutory limitation period or seek an extension of time in their initial summons, which led to their claims being dismissed at a preliminary stage.

The primary legal issue before the Full Court was whether the unsuccessful respondents should be ordered to pay the appellants' costs of the appeal and the earlier hearing before the Master. This required the Court to consider the exercise of its discretion regarding costs in family provision claims, particularly when claims founder on a jurisdictional threshold rather than on their merits. The Court was asked to determine if the general rule that costs follow the event should apply, or if specific principles applicable to family provision claims warranted a departure.

The Court reasoned that while the respondents' claims failed due to a procedural error by their solicitor, the merits of their claims had not been determined. Applying the principles established in cases such as *Pizimolas v Pizimolas & Zannis (No 2)* and *Krause v Sinclair*, the Court acknowledged the public policy objective of not discouraging meritorious claims in family provision matters. The Court noted that the preliminary resolution of the jurisdictional issue had saved the estate significant costs. Given the absence of a determination on the merits and the potential for the respondents to have been left without adequate provision, the Court concluded that it would be unfair to burden them with an award of costs against them.

Consequently, the Full Court dismissed the interlocutory application and ordered that the parties be heard as to costs. This approach aligned with precedents where unsuccessful applicants in family provision claims, who failed at a jurisdictional threshold, were not ordered to pay the successful party's costs, and in some instances, their own costs were paid out of the estate.