Miller v Miller (No 2)

[2017] SASC 53

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

MILLER v MILLER (No 2)

[2017] SASC 53

Judgment of the Honourable Justice Blue  

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF ISSUES

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - CONDUCT OF PARTIES

SUCCESSION - ADMINISTRATION OF ESTATE

SUCCESSION - FAMILY PROVISION - PROCEDURE - TIME FOR MAKING APPLICATION

Costs issues on determination of preliminary issue in action for provision out of estate.

On the determination of the preliminary issue, it was held that the first defendant executor of the estate had conferred authority on her solicitors which encompassed authority to accept service of an application under the Act but on the proper construction of Rule 67 of the Supreme Court Civil Rules 2006 the fact that the solicitors did not issue an acknowledgment of acceptance of service prevented there being effective service: Miller v Miller [2017] SASC 37.

The defendants seek an order that the plaintiff pay their costs of the preliminary issue on the basis that costs follow the event. They also seek that their costs of the preliminary issue under the Inheritance (Family Provision) Act 1972 be paid on an indemnity basis because the plaintiff unreasonably failed to accept offers to settle the action which he cannot now better.

The plaintiff seeks an order that the defendants pay his costs of the preliminary issue on an indemnity basis on the ground that he was successful on the issue which occupied almost all of the time at trial and the defendants are guilty of misconduct in, relating to or leading up to litigation.

Held:

1.  Although the defendants were successful on the preliminary issue, they were unsuccessful on the substantive issue which took almost all of the time at trial and in the circumstances, by reason of the mixed success, each party should bear their own costs of the preliminary issue ([at 15]).

2.  If the defendants are guilty of misconduct in, relating to or leading up to the litigation (which is not decided), it would not relevantly affect the costs of the preliminary issue ([at 22]).

3.  The settlement offers made by the defendants do not relevantly affect the costs of the preliminary issue ([at 28]).

4.  Order that there be no order as to the costs of the preliminary issue ([at 29]).

Inheritance (Family Provision) Act 1972 (SA); Supreme Court Act 1935 (SA) s 40; Supreme Court Civil Rules 2006 (SA) ss 67, 187, 188F, 188G, 263, referred to.

Calderbank v Calderbank [1975] 3 WLR 586; Oshlack v Richmond River Council (1998) 193 CLR 72, discussed.

Advance Resource Services Pty Ltd v Charlton (2008) 100 SASR 388; Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873; Australian Trade Commission v Disktravel [2000] FCA 62; Bostock v Ramsey Urban District Council [1900] 2 QB 616; Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107; Copping v…