Kent v STRATTON-KENT
[2024] WASC 488
•19 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: KENT -v- STRATTON-KENT [2024] WASC 488
CORAM: HILL J
HEARD: ON THE PAPERS
DELIVERED : 19 DECEMBER 2024
FILE NO/S: CIV 1044 of 2024
BETWEEN: ALEXANDER LAWRENCE KENT
LAURA ESTHER KENT
First Plaintiffs
ANDREW RONALD WILLIAM BOWER as attorney pursuant to section 34 Administration Act for LAURA ESTHER KENT
ANDREW RONALD WILLIAM BOWER as attorney pursuant to section 34 Administration Act for ALEXANDER LAWRENCE KENT
Second Plaintiffs
AND
MARIA VIOLET STRATTON-KENT
First Defendant
HUGO AMADEUS KENT
Second Defendant
MARIA VIOLET STRATTON-KENT
Plaintiff by counterclaim
ALEXANDER LAWRENCE KENT
First Defendant by counterclaim
LAURA ESTHER KENT
Second Defendant by counterclaim
ANDREW RONALD WILLIAM BOWER as attorney pursuant to section 34 Administration Act for ALEXANDER LAWRENCE KENT
ANDREW RONALD WILLIAM BOWER as attorney pursuant to section 34 Administration Act for LAURA ESTHER KENT
Defendant by counterclaim
Catchwords:
Costs - Appropriate costs order in series of proceedings which were settled without hearing - Application by first defendant for indemnity costs - Whether indemnity costs orders should be made - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA) O 66 r 1
Supreme Court Act 1935 (WA) s 37
Result:
No order as to costs
Category: B
Representation:
Counsel:
| First Plaintiffs | : | No appearance |
| Second Plaintiffs | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Plaintiff by counterclaim | : | No appearance |
| First Defendant by counterclaim | : | No appearance |
| Second Defendant by counterclaim | : | No appearance |
| Defendant by counterclaim | : | No appearance |
Solicitors:
| First Plaintiffs | : | Solomon Hollett Lawyers |
| Second Plaintiffs | : | Solomon Hollett Lawyers |
| First Defendant | : | Kershaw Legal |
| Second Defendant | : | No appearance |
| Plaintiff by counterclaim | : | Kershaw Legal |
| First Defendant by counterclaim | : | Solomon Hollett Lawyers |
| Second Defendant by counterclaim | : | Solomon Hollett Lawyers |
| Defendant by counterclaim | : | Solomon Hollett Lawyers |
Cases referred to in decision:
Prichard v Prichard [2015] WASC 170 (S)
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Yara Australia Pty Ltd v Oswal [2012] WASCA 264
HILL J:
On 17 January 2024, the plaintiffs commenced these proceedings against the defendants. These proceedings were commenced as a result of a dispute between the parties as to whether the first defendant should be granted letters of administration in solemn form of the estate of Andrew Leslie Kent (the Deceased).
Between 9 November 2023, when the first defendant filed an application for the grant of letters of administration in solemn form of the estate of the Deceased (Probate Application) and 22 July 2024, when these proceedings were dismissed following the filing of a minute of consent orders, three separate contested applications or proceedings were commenced. First, an appeal from a decision of the Acting Principal Registrar on 2 January 2024 (Appeal), which was dismissed on 28 February 2024. Second, an application for the appointment of an administrator pendente lite (CIV 2454 of 2023) which was dismissed by consent and third, these proceedings. The parties had previously agreed that the costs of the Appeal and CIV 2454 of 2023 be costs in these proceedings.
The first defendant sought an order for the first-named and second-named plaintiffs to pay her costs on an indemnity basis, alternatively, on a party-party basis, for all three contested applications. In so far as any order did not indemnify the first defendant for her actual costs, she sought an order that any additional costs be recovered from the estate of the Deceased. The first defendant also sought an order that she be entitled to her costs of the Probate Application on an indemnity basis from the estate of the Deceased.
In contrast, the plaintiffs contended the appropriate costs order was that there be no order as to the costs of these proceedings. As orders were made in both the Appeal and CIV 2454 of 2023 for the costs to be costs in these proceedings, the same order applies to these costs.
For the reasons that follow, it is my view that the appropriate costs order is that there be no order as to costs.
Relevant procedural history
In order to explain the basis for the conclusion I have reached, it is necessary to briefly summarise the history and nature of the various proceedings involving the parties.
PRO 8058 of 2023
On 9 November 2023, the first defendant filed the Probate Application.
On 15 December 2023, Acting Principal Registrar Davies ordered that on 22 December 2023, letters of administration would be granted to the applicant unless ordered otherwise.
Following the commencement of CIV 2454 of 2023 on 21 December 2023, Acting Principal Registrar Davies made orders on 2 January 2024 that the Probate Application be determined after the determination of CIV 2454 of 2023.
The first defendant filed the Appeal on 3 January 2024, which was heard on 12 January 2024. Orders were made on that date for the filing of further submissions. Following the commencement of CIV 1044 of 2024 on 17 January 2024, orders were made dismissing the Appeal and staying the Probate Application until determination of CIV 1044 of 2024. The costs of the Appeal were ordered to be costs in the cause in these proceedings, CIV 1044 of 2024.
On 24 July 2024, following the dismissal of CIV 1044 of 2024 by consent, orders were made to grant letters of administration to the first defendant on 24 July 2024.
CIV 2454 of 2023
On 21 December 2023, the first-named first plaintiff filed proceedings seeking orders pursuant to s 35 of the Administration Act 1903 (WA) for the appointment of an administrator pendente lite pending the determination of the Probate Application.
On 12 March 2024, these proceedings were dismissed by consent, with the costs ordered to be costs in the cause of CIV 1044 of 2024.
CIV 1044 of 2024
These proceedings were commenced by writ indorsed with a statement of claim on 17 January 2024. In these proceedings, the plaintiffs sought orders for the grant of letters of administration in solemn form to the second plaintiff. The first defendant filed a defence and counterclaim on 18 March 2024 seeking an order for the grant of letters of administration to the first defendant.
The matter was set down for a five-day trial before me in November 2024.
On 22 July 2024, orders were made by consent dismissing the proceedings, as well as the counterclaim. The parties had liberty to apply for costs within 14 days of the date of these orders. In accordance with this liberty to apply, the first defendant has sought orders for her costs.
Parties' submissions
The first defendant submits that the first-named and second-named plaintiffs should pay her costs of the Appeal, CIV 2454 of 2023 and these proceedings for two primary reasons. First, she contends that she has been successful in achieving the result originally sought. On this basis, she says that she is the successful party and that costs should follow the event. Second, she contends that it was unreasonable for the plaintiffs to commence any of these proceedings.
The plaintiffs deny that any order should be made as to costs and that each party should bear their own costs of these proceedings. The primary basis for this contention that, ultimately, no party has obtained the relief that they sought. They also deny it was unreasonable to commence any of these contested applications.
Legal principles
Pursuant to s 37 of the Supreme Court Act 1935 (WA) (Act), the court has a general discretion to award costs. This includes the power to determine who and out of what estate, fund or property costs should be paid.
This discretion must be exercised judicially and is subject to the rules of the court.
Order 66 r 1 of the Rules of the Supreme Court 1971 (WA) (Rules) provides that, without limiting the general discretion conferred on the court by the Act, the court will generally order that the successful party to any action or matter will recover their costs. This is referred to as the general rule that 'costs follow the event'.
In probate matters, there are two well-recognised exceptions to this general rule, namely:[1]
(a)where the litigation has been brought about through the conduct of the testator; and
(b)where the parties have a bona fide belief and feel it is desirable to enquire into the testamentary disposition of the testator.
[1] Prichard v Prichard [2015] WASC 170 (S) [3] - [4].
Costs are usually awarded on a party-party basis; although, the court has a discretion to order indemnity costs.
An indemnity costs order is only made in exceptional circumstances — there must be a special or unusual feature of a case for a court to exercise its discretion to award costs on an indemnity basis.[2]
[2] Yara Australia Pty Ltd v Oswal [2012] WASCA 264 [33].
In Swansdale Pty Ltd v Whitcrest Pty Ltd, the Court of Appeal summarised the principles that apply to the making of an indemnity costs order:[3]
(a)in appropriate circumstances, the court can order costs to be paid on an indemnity basis where there is 'some special or unusual feature' which justifies the order;
(b)the circumstances in which a court will exercise its discretion to make an order for indemnity costs are not closed;
(c)in obtaining an order for indemnity costs, it is not necessary for a successful party to show there has been a collateral purpose or establish a species of fraud against the unsuccessful party; it is sufficient if a party persists in running what is properly viewed as a hopeless case. That said, it is inappropriate for a court to too readily characterise a case as hopeless; and
(d)an order for indemnity costs may be appropriate where there has been some element of improper or unreasonable conduct by a party or their legal advisers.
[3] Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10].
Disposition
While all of the proceedings concerned questions in relation to the estate of the Deceased, strictly speaking, not all of these proceedings were probate actions (as defined in O 73 r 1 of the Rules). However, in my view, the question of the costs of each of the proceedings should be determined by reference to the principles governing the costs of probate actions.
For the following reasons, it is my view that there should be no order as to the costs of these proceedings (which includes the costs of the Appeal and CIV 2454 of 2023).
First, I accept that it is arguable that these proceedings were caused, at least in part, by the conduct of the Deceased testator during his lifetime in intermingling his personal assets with the estate of his deceased mother. Given this, I do not consider that it was unreasonable for the first-named and second-named plaintiffs to have commenced the Appeal and each of the proceedings.
Second, in the Probate Application, the first defendant sought the grant of letters of administration in solemn form. This is not the grant that has been made. On this basis, I do not consider that any of the parties can be considered to be the 'successful' party.
Third, these proceedings did not go to hearing. No findings have been made on the strength of each party's case or the factual matters for which they contended.
The orders that were made in the Appeal and CIV 2454 of 2023 are that the costs of those matters should be costs in the cause of these proceedings. That is, the parties agreed that there should be only one costs order governing all disputes between them. I do not consider it is necessary to go behind these orders to separately consider the strength of the claim in each of these proceedings.
In relation to the costs of the Probate Application, it is my view that these costs should form part of the application by the first defendant for the passing of accounts. It is a matter for the registrar at the time of the passing of these accounts as to the costs that should be ordered.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JN
Associate to the Honourable Justice Hill
19 DECEMBER 2024
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