Miller v Miller (No 2)

[2018] SASCFC 82

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

MILLER v MILLER & ANOR (No 2)

[2018] SASCFC 82

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Bampton)

23 August 2018

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION

SUCCESSION - FAMILY PROVISION - PROCEDURE - TIME FOR MAKING APPLICATION - GENERALLY - SOUTH AUSTRALIA

SUCCESSION - ADMINISTRATION OF ESTATE

Application for costs after dismissing the appeal.

The Court previously delivered reasons for dismissing the appeal against orders made by a Judge of this Court concerning the service of testator family maintenance provisions after the expiration of six months from the grant of probate: Miller v Miller & Anor [2018] SASCFC 40.

The appellant submits that the respondent pay the appellant’s costs up to September 2016, and that parties bear their own costs from September 2016 onwards.

The respondent seeks an order that the appellant pay the respondent's costs.

Held, per Curiam:

1.     The appellant pay the respondent’s costs of, and incidental to, the appeal.

Miller v Miller & Anor [2018] SASCFC 40, applied.

MILLER v MILLER & ANOR (No 2)
[2018] SASCFC 82

Full Court:  Kourakis CJ, Nicholson and Bampton JJ

1. THE COURT:       On 23 May 2018 this Court dismissed the appellant’s appeal against the orders made by a Judge of this Court concerning the service of testator family maintenance provisions after the expiration of six months from the grant of probate.

2. The respondent was successful before the Judge on the hearing, as a preliminary issue, on the application of the limitation period but did not plead that issue was just over a year after the substantive proceedings were issued.  The appellant complains about the costs thrown away in that period.  As the Judge observed in his reasons for the costs order he made with respect to the hearing of the preliminary issue, the proper occasion to consider what order, if any, should be made with respect to those costs is on the finalisation of the substantive matter.

3. The application for costs in this Court can only concern the costs of the appeal.  The appellant failed on that appeal and there is no reason why the ordinary order as to costs should not be made.

4. We would order that the appellant pay the respondent’s costs of, and incidental to, the appeal.