Kitson v Franks
[2001] WASCA 134 (S)
•27 APRIL 2001
KITSON & ANOR -v- FRANKS & ANOR [2001] WASCA 134 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 134 (S) | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:99/2000 | 2 FEBRUARY 2001 | |
| Coram: | MALCOLM CJ KENNEDY J PARKER J | 27/04/01 | |
| 29/06/01 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Costs of parties to appeal to be paid from estate Costs orders at trial varied | ||
| PDF Version |
| Parties: | MICHAEL ARTHUR KITSON ZELDA JEAN KITSON JODIE MARIE FRANKS BRADLEY JOHN KITSON |
Catchwords: | Succession Inheritance Costs on appeal |
Legislation: | Nil |
Case References: | Walsh & Anor v O'Sullivan & Anor, unreported; SCt of WA (Owen J); Library No 960629; 30 October 1996 Bath v Perpetual Trustees WA Ltd & Ors [2000] WASC 255 Boykett v Boykett & Anor, unreported; SCt of WA (Murray J); Library No 970735; 22 December 1997 Browne v Macaulay & Ors [1999] WASC 217 Dobb v Hacket & Ors (1993) 10 WAR 532 Ingamells v West Australian Trustees Limited & Anor, unreported; SCt of WA (White J); Library No 920022; 11 February 1992 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : KITSON & ANOR -v- FRANKS & ANOR [2001] WASCA 134 (S) CORAM : MALCOLM CJ
- KENNEDY J
PARKER J
DECISION : 29 JUNE 2001 FILE NO/S : FUL 99 of 2000 BETWEEN : MICHAEL ARTHUR KITSON
- First Appellant
ZELDA JEAN KITSON
Second Appellant
AND
JODIE MARIE FRANKS
First Respondent
BRADLEY JOHN KITSON
Second Respondent
Catchwords:
Succession - Inheritance - Costs on appeal
(Page 2)
Legislation:
Nil
Result:
Costs of parties to appeal to be paid from estate
Costs orders at trial varied
Representation:
Counsel:
First Appellant : Mr I L K Marshall
Second Appellant : Mr I L K Marshall
First Respondent : Mr D L Jones
Second Respondent : Mr D L Jones
Solicitors:
First Appellant : M J Manning
Second Appellant : M J Manning
First Respondent : Rod Tatchell
Second Respondent : Rod Tatchell
Case(s) referred to in judgment(s):
Walsh & Anor v O'Sullivan & Anor, unreported; SCt of WA (Owen J); Library No 960629; 30 October 1996
Case(s) also cited:
Bath v Perpetual Trustees WA Ltd & Ors [2000] WASC 255
Boykett v Boykett & Anor, unreported; SCt of WA (Murray J); Library No 970735; 22 December 1997
Browne v Macaulay & Ors [1999] WASC 217
Dobb v Hacket & Ors (1993) 10 WAR 532
Ingamells v West Australian Trustees Limited & Anor, unreported; SCt of WA (White J); Library No 920022; 11 February 1992
(Page 3)
1 JUDGMENT OF THE COURT: When the decision on the appeal was delivered the question of costs, both of the appeal and the trial before Heenan J, was reserved. The parties were given leave to file further submissions which have now been received. These reasons state briefly the basis on which we have decided to make the orders as to costs set out at the end of these reasons.
2 In respect of the costs on the appeal and cross-appeal we note that the parties, other than the second respondent, were and remain entitled to share in the estate. This remains undistributed. In our view it is appropriate in the circumstances of this case that their costs be paid from the estate.
3 While, by virtue of the decision on appeal, the second respondent is no longer to share in the estate, he was successful at trial so that at the time he incurred the costs of the appeal and cross-appeal he was entitled to share in the estate and his conduct in resisting the appeal may not properly be regarded as unreasonable. In these circumstances we are persuaded that it is appropriate that his costs of the appeal and cross-appeal should also be paid from the estate.
4 In the particular circumstances of this case, essentially for reasons outlined by Parker J in the decision on appeal at [97], the costs of the appeal and cross-appeal should be paid out of the proceeds of the sale of the Myola property.
5 With respect to the costs of the trial we are of the view that the approach indicated in the reasons of Parker J in the decision on appeal at [99(d) and (e)] remains appropriate. In view of the outcome of the appeal the second respondent (second plaintiff) was a claimant who was not a beneficiary but who had standing to bring the application. He failed, however, to satisfy the first or jurisdictional requirement of the statute. In this respect, we note that the awarding of costs in applications of this nature may be significantly influenced by the particular circumstances of the case and there is no fixed rule. Walsh & Anor v O'Sullivan & Anor, unreported; SCt of WA (Owen J); Library No 960629; 30 October 1996 does not establish or reflect a general rule as was submitted for the second respondent (second plaintiff). That case was different from the present in a number of respects. In particular the plaintiffs were beneficiaries and the issue was whether the provisions made for them in the will were adequate. That is not the present case. In these circumstances it is our view that the second respondent (second plaintiff) should meet his own
(Page 4)
- costs of the trial, but should not be required to pay the costs of any other party.
6 We are not persuaded there is reason to vary the orders of Heenan J as to the costs of the trial either to make specific provision as to the costs of the executor or to order that taxation be on a practitioner and client basis. Nor would such orders be appropriate on the appeal and cross-appeal.
7 The second respondent (second plaintiff) sought an order under the Suitors Fund Act 1964 s 10(1). This provision requires that the appeal succeed on a question of law. In our view that requirement is not satisfied in this case.
Orders in respect of costs
8 The following orders are made in respect of the costs of the appeal and cross-appeal and in variance of the orders for costs made at trial.
1. The parties to the appeal and cross-appeal to have their costs, to be taxed if not agreed, to be paid from the proceeds of the sale of the Myola property.
2. The order of Heenan J dated 23 May 2000 be varied so that:
(a) Paragraph 3 reads -
"3. The costs of the first plaintiff and the defendants, to be taxed if not agreed, be paid from the proceeds of the sale of the Myola property. The costs of getting up and hearing of the originating summons be taxed as if for trial pursuant to items 13, 14(a), (c) and (e) of the Supreme Court Scale of Costs. The first plaintiff and the defendants do contribute to those costs in the following proportions:
(i) two-twelfth parts by the first plaintiff,
(ii) five-twelfth parts by each of the defendants"
(Page 5)
- "4. The second plaintiff pay his own costs of the action."
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