Kimberley v Maxwell Keith Butcher, Geoffrey Alan Butcher and Garry SULGWYN Tonkin as Executors appointed under the Will of Mavis Jean Kimberley (Dec)
[2001] WASC 118
•17 MAY 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: KIMBERLEY -v- MAXWELL KEITH BUTCHER, GEOFFREY ALAN BUTCHER AND GARRY SULGWYN TONKIN as Executors appointed under the Will of MAVIS JEAN KIMBERLEY (DEC) & ORS [2001] WASC 118
CORAM: MASTER SANDERSON
HEARD: 3 MAY 2001
DELIVERED : 17 MAY 2001
FILE NO/S: CIV 1979 of 2000
BETWEEN: STANLEY KIMBERLEY
Plaintiff
AND
MAXWELL KEITH BUTCHER, GEOFFREY ALAN BUTCHER AND GARRY SULGWYN TONKIN as Executors appointed under the Will of MAVIS JEAN KIMBERLEY (DEC)
First DefendantsMAXWELL KEITH BUTCHER
GEOFFREY ALAN BUTCHER
LYNETTE KAYE TONKIN
Second Defendants
Catchwords:
Costs - Order for costs after unsuccessful application under Inheritance (Family and Dependants Provision) Act - Guidelines - O 24A offer and its effect
Legislation:
Inheritance (Family and Dependants Provision) Act, s 14(8)
Rules of the Supreme Court 1971, O 24 r 10(5)
Result:
Each party bear their own costs
Representation:
Counsel:
Plaintiff: Mr T Darbyshire
First Defendants : Mr M J McPhee
Second Defendants : Mr G A Rabe
Solicitors:
Plaintiff: Kott Gunning
First Defendants : Michell Sillar McPhee
Second Defendants : Stables Scott
Case(s) referred to in judgment(s):
O'Brien v Trustees of Western Australia Ltd as Executor of the Estate of O'Brien (Dec) [2000] WASC 33
Case(s) also cited:
Nil
MASTER SANDERSON: On 12 April 2001 I delivered reasons for dismissing the plaintiff's claim brought under the provisions of the Inheritance (Family and Dependants Provision) Act ("the Act"). In essence I determined that the deceased had made adequate provision for the plaintiff in her Will. I stood over the question of costs to allow the parties to consider the reasons and to make further submissions. These reasons then are concerned only with the question of costs. On behalf of the plaintiff it was submitted that either the costs of all parties should be taxed and paid out of the estate or, alternatively, that each party should bear their own costs. For the defendants it was contended that costs should follow the event and the plaintiff should pay the costs of the defendants. Furthermore, the defendants argued that the costs ought be paid on a solicitor/client basis.
Under s 14(6) of the Act the court has a wide and unfettered discretion in relation to costs. In O'Brien v Trustees of Western Australia Ltd as Executor of the Estate of O'Brien (Dec) [2000] WASC 33, Master Bredmeyer referred to Dickey: Family Provision After Death at pages 184 ‑ 185 and set out four relevant factors in considering the question of costs. So far as these criteria applied to this case the relevant aspects are first, the merits and reasonableness of the plaintiff's case; secondly the size of the estate and thirdly, the conduct of the proceedings by the parties.
Dealing with these criteria in turn it must be said that the plaintiff's case had merit and was reasonable. This was a marriage of some 19 years' duration. The relief sought by the plaintiff was an interest in a property which had been the matrimonial home throughout the period of the marriage. The plaintiff had no other accommodation immediately available to him. While his claim may ultimately have failed it could not be said that the plaintiff properly advised was bound to fail.
The estate of the deceased, while moderate, was not insignificant. It comprised a property in Dianella and approximately $80,000 in cash. There is no question of the benefits of successfully defending the claim being denied to the defendants if they are forced to meet their costs out of the estate. Nonetheless it must be acknowledged that the costs incurred by the defendants have been significant and have reduced the cash available for distribution.
Save in one respect the conduct of the proceedings by the plaintiff was entirely proper. The same can be said without reservation of the conduct of the proceedings by the defendants. The application was vigorously pursued and equally vigorously defended. To an extent both sides canvassed irrelevant matters both in the affidavit material and in cross‑examination. But in applications of this kind where there are no pleadings and where emotions run high that is understandable. There was nothing in the conduct of these proceedings which was extraordinary.
The one reservation I mentioned in relation to the plaintiff's case had to do with his evidence in relation to what took place at a meeting held between the plaintiff and the deceased and the second defendants on 30 May 1999. In dealing with this meeting I concluded that the evidence of the plaintiff was not to be accepted. It is difficult to accept that the version of events given by the plaintiff was the result of a faulty memory. Nonetheless it must be said that this meeting was not pivotal to the outcome of the claim and while I have doubts about the veracity of the plaintiff's evidence, it cannot be said that if the second defendants' versions of this meeting had been accepted by the plaintiff his claim would automatically have failed.
There is one further matter which I should mention. On 22 February 2001 the second defendants offered to settle the matter on payment of the sum of $1000 to the plaintiff. This offer was made pursuant to the provisions of O 24A of the Rules of the Supreme Court 1971. It was submitted by counsel for the second defendants that as the plaintiff had failed to obtain a judgment greater than $1000 the plaintiff should be ordered to pay costs pursuant to O 24A r 10(5). In my view that rule has no application to this situation. The rule is predicated on the basis that the plaintiff obtained judgment in the action. That has not happened in this case - the plaintiff's claim has failed. In any event, it is doubtful whether O 24A can override the provisions of s 14(8) of the Act.
On balance I am satisfied that the proper order in this case is that each party should bear their own costs. In reaching that conclusion I have given considerable weight to the reasons why I concluded that the plaintiff's claim should fail. I determined that the deceased had made adequate provision for the plaintiff in her Will. In reaching that conclusion I took into account the plaintiff's assets as at the date of the death of the deceased. These assets included certain amounts which had been transferred from bank accounts held by the deceased into the plaintiff's name. I was satisfied when proper regard was had to the plaintiff's financial position he would be in a position to obtain suitable accommodation whether it be an RSL home unit or otherwise. If the funds held by the plaintiff were to be dissipated by a costs order made against him then he might not be in a position to find appropriate accommodation. His financial position is too finely balanced to be sure that an adverse costs order would not impose upon him unacceptable hardship.
The form of the final order will be that the plaintiff's application be dismissed with each party to bear their own costs.
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