KOCINI v KAMBANAROS (No 2)

Supreme Court of South Australia

(Civil)

KOCINI v KAMBANAROS (No 2)

[2022] SASC 50

Judgment of Judge Dart a Master of the Supreme Court

SUCCESSION - FAMILY PROVISION - PROCEDURE - ORDERS AND OTHER PROCEDURAL MATTERS - COSTS

Claim of the applicant dismissed - applicant says there should be no order as to costs - respondent says costs should follow the event - costs in probate matters different to civil matters - need to deal with the justice of the situation.

Held:  Applicant to pay the respondent's cost of action fixed in the amount of $50,000.

Inheritance (Family Provision) Act 1972 (SA); Supreme Court Act 1935 (SA) s 40; Wills Act 1936 (SA) s 12, referred to.
Fielder v Burgess [2014] SASC 98; Oshlack v Richmond River Council (1998) 193 CLR 72; Ponder & Anor v Burmeister & Ors [1909] SALR 62; Singer v Berghouse [1993] HCA 35, considered.

KOCINI v KAMBANAROS (No 2)
[2022] SASC 50

1. This matter was a claim made pursuant to the Inheritance (Family Provision) Act 1995 (“IFP Act”).  The applicant failed to establish that she had been left without adequate provision.  The claim was dismissed.[1]  These reasons deal with the question of costs. 

   [1] 18 March 2022, [2022] SASC 25.

2. The position of the applicant is that there should be no order as to costs.  The respondent says that costs should follow the event on the standard costs basis.

   The history of costs in probate actions

3. The courts’ power to award costs is found in the Supreme Court Act 1935 in the following section:

   40—Power of court with regard to costs

   (1)Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed, the costs of and incidental to all proceedings in the court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid.

4. The section provides the Court with a broad discretion to award costs in litigation conducted in the Court.  Like all such discretions, it is to be exercised judicially and in the interests of justice.

5. Costs in probate matters have long been dealt with differently to costs in ordinary civil litigation.  That may be because, historically, probate matters were dealt with by the ecclesiastical courts which adopted an inquisitorial approach to resolving matters in dispute. 

6. There are many cases dealing with the question of costs in probate matters.  In Ponder & Anor v Burmeister & Ors the position was put as follows by Way CJ:[2]

   The methods in which the costs are generally dealt with in those two classes of cases were stated by the same learned judge in a somewhat earlier case:— “In deciding the question of costs the Court of Probate has usually followed two rules of practice—first, that if “the…