Haertsch v Whiteway (No 2)

In *Haertsch v Whiteway (No 2)*, the New South Wales Court of Appeal considered an application for costs following a family provision proceeding. The plaintiff, Ms. Whiteway, had been successful at first instance but subsequently lost on appeal. The appeal and cross-appeal involved the plaintiff, the first respondent, and the appellant, who was the first defendant. The second respondent, Jane French, was the second defendant.

The central legal issues before the Court of Appeal were whether to depart from the general rule that costs follow the event, and how to exercise the court's discretion regarding the costs of both the first instance proceedings and the appeal. Specifically, the court had to determine the appropriate cost orders in circumstances where the plaintiff, initially successful, ultimately failed to uphold the primary judge's decision on appeal.

The Court of Appeal reasoned that while the general rule is that costs follow the event, this rule is not absolute, particularly in family provision proceedings where there is a discretion to depart from it. The court noted that the plaintiff had been successful at first instance, which justified an award of costs in her favour at that stage. However, given her subsequent failure on appeal, the court considered it appropriate to make a partial order for the plaintiff to pay a proportion of the defendants' costs of the proceedings below. The court also ordered the first respondent to pay the appellant's costs of the appeal and cross-appeal. Crucially, the court directed that any shortfall in the appellant's costs, assessed on an indemnity basis, and the costs at first instance, also assessed on an indemnity basis, should be paid out of the estate of Stephne Whiteway. No orders were made as to the costs of the second respondent, Jane French, meaning she was to bear her own costs throughout.