McCusker v Rutter

The case of *McCusker v Rutter* concerned appeals by three adult children against a primary judge's decision regarding costs in proceedings brought under the *Family Provision Act 1982*. The children had made unsuccessful claims for provision from the estate of their deceased parent. The executrix of the estate, the appellant, sought costs against the unsuccessful claimants.

The central legal issues before the Court of Appeal were whether the primary judge had erred in his costs orders, particularly in light of a finding he made about the executrix's alleged improper motive in instigating one of the daughter's proceedings, and whether the court should exercise its discretion to depart from the usual rule that costs follow the event. The court was required to determine if the overall justice of the case warranted an order other than the successful party receiving their costs.

The Court of Appeal found that the primary judge's finding of improper motive on the part of the executrix was unsupportable, as this allegation had not been put to her during the proceedings. Consequently, the Court of Appeal determined it needed to exercise its discretion regarding costs afresh. The court held that there were no sufficient grounds to displace the strong guideline that the successful party should generally be awarded costs.

The appeal was allowed. The orders made by the primary judge concerning costs were set aside. The adult children, David Andrew Rutter and Jane Elizabeth Rutter, were ordered to pay the appellant's and the third respondent's costs of the appeal. They were also ordered to pay 85% of the appellant's costs in the Equity Division proceedings. The appellant was to receive her costs from the estate on an indemnity basis for proceedings brought by her daughter Flossiy, and for defending proceedings brought by David Andrew Rutter and Jane Elizabeth Rutter to the extent not recovered from them. The third respondent administrator was permitted to retain his costs of the appeal from the estate to the extent not recovered from the first and second respondents. Certificates under the *Suitor's Fund Act* were to be granted to David Andrew Rutter and Jane Elizabeth Rutter.