Nelson v Nelson
[1999] WASCA 302
•21 DECEMBER 1999
NELSON -v- NELSON & ANOR [1999] WASCA 302
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 302 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:38/1998 | 26 NOVEMBER 1999 | |
| Coram: | KENNEDY J WALLWORK J MURRAY J | 21/12/99 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Orders made as to costs | ||
| PDF Version |
| Parties: | JAN LOUISE NELSON DAVID JON NELSON THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA AS EXECUTOR OF THE WILL OF JOYCE NELSON |
Catchwords: | Costs Application by adult son for provision under the Inheritance (Family and Dependants Provision) Act 1972 Master awarding applicant, an adult son, 40 per cent of the residuary estate Share of adult daughter reduced from 80 per cent to 40 per cent of the residuary estate Remaining 20 per cent left to son of applicant not interfered with On appeal award to son reduced to 10 per cent with daughter to receive 70 per cent of the residuary estate Estate valued at date of hearing of appeal at $130,000 of which $60,000 owing by daughter to estate for occupation of estate's house Delay in bringing application on for hearing Costs unnecessarily incurred by the parties One-third of costs of son in relation to application to be paid out of estate Son to pay daughter's costs of appeal |
Legislation: | Nil |
Case References: | Nil Carter v Northmore Hale Davy & Leake, unreported; FCt SCt of WA; Library No 930516; 21 September 1993 Dodd v Hacket (1993) 10 WAR 532 Fountain Select Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Grbavac v Hart [1997] 1 VR 154 Tamwoy v Solomon [1996] 2 Qd R 93 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : NELSON -v- NELSON & ANOR [1999] WASCA 302 CORAM : KENNEDY J
- WALLWORK J
MURRAY J
- Appellant (Second Defendant)
AND
DAVID JON NELSON
First Respondent (Plaintiff)
THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA AS EXECUTOR OF THE WILL OF JOYCE NELSON
Second Respondent (First Defendant)
Catchwords:
Costs - Application by adult son for provision under the Inheritance (Family and Dependants Provision) Act 1972 - Master awarding applicant, an adult son, 40 per cent of the residuary estate - Share of adult daughter reduced from 80 per cent to 40 per cent of the residuary estate - Remaining 20 per cent left to son of applicant not interfered with - On appeal award to son reduced to 10 per cent with daughter to receive 70 per cent of the residuary estate - Estate valued at date of hearing of appeal at $130,000 of which $60,000 owing by daughter to estate for occupation of estate's house - Delay in bringing application on for
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hearing - Costs unnecessarily incurred by the parties - One-third of costs of son in relation to application to be paid out of estate - Son to pay daughter's costs of appeal
Legislation:
Nil
Result:
Orders made as to costs
Representation:
Counsel:
Appellant (Second Defendant) : Mr C P Shanahan
First Respondent (Plaintiff) : Mr H O Moser
Second Respondent (First Defendant) : Mr H D Concanen
Solicitors:
Appellant (Second Defendant) : Butcher Paull & Calder
First Respondent (Plaintiff) : Paterson & Dowding
Second Respondent (First Defendant) : Mr H D Concanen
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Carter v Northmore Hale Davy & Leake, unreported; FCt SCt of WA; Library No 930516; 21 September 1993
Dodd v Hacket (1993) 10 WAR 532
Fountain Select Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Grbavac v Hart [1997] 1 VR 154
Tamwoy v Solomon [1996] 2 Qd R 93
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1 JUDGMENT OF THE COURT: Before the learned Master, the first respondent was successful in his application for provision for his maintenance, support or advancement in life out of his mother's estate. He was granted 40 per cent of the residuary estate. This came at the expense of his sister, whose share in the residuary estate was reduced to 40 per cent from the 80 per cent originally provided for in the will. On the appeal by the appellant from the Master's decision, this Court, by a majority, reduced the provision for the first respondent to 10 per cent, with the appellant's interest in the residuary estate being increased to 70 per cent.
2 The Court is now called upon to determine what orders should be made with respect to the costs in connection with the proceedings at first instance and in connection with the appeal. By s 14(6) of the Inheritance (Family and Dependants Provision) Act 1972, the Court may make such order as to the costs of any proceeding under the Act as it deems just. It is a very wide discretion which is conferred upon it.
3 The estate of the testatrix is modest. The latest information before the Court is that the net value of the estate amounts to approximately $130,000 after payment of the costs ordered to be paid to the first respondent's son, who was one of the defendants below, but who was not a party to this appeal. Of the sum of $130,000, however, approximately $60,000 is a debt due by the appellant to the second respondent, the trustee of the estate, with respect to her use and occupation of the former residence of the testatrix, that residence being valued at approximately $77,500. In practical terms, this means that the appellant will have to pay the estate $18,000, the balance of $42,000 being set off against her entitlement in distribution to the remainder of the sum of $60,000.
4 Unfortunately, this is a case in which there has been considerable bitterness and animosity between the appellant and the first respondent. This has added significantly to the costs in the proceedings as they have pursued many issues which have been only peripherally relevant to the first respondent's application. Each has sought to portray the other in the worst possible light. Furthermore, there was on the part of the first respondent a very long delay in listing the application for hearing before the Master, which has increased the indebtedness of the appellant to the estate and rendered uncertain the eventual outcome of this matter for an extended period of time.
5 Leading up to the hearing of the first respondent's application, it was claimed by him that agreement had been reached between himself and the
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- appellant regarding a settlement of his application, on the basis that he would receive a 10 per cent share in the residuary estate. There were certain other conditions attaching to the suggested settlement, which were set out in the letter from the appellant's solicitors which has been relied upon by the first respondent as constituting an offer which was subsequently accepted by him. The first respondent now claims that the suggested settlement should be regarded in the same light as an offer by him, with a consequent impact upon the issue of costs. Precisely why the settlement did not proceed is not clear. It may have been for the reason that the appellant sought to add further conditions. Or it may be that, as the appellant claims, the letter did not set out all the conditions which had been agreed upon in the course of the mediation. Be that as it may, the first respondent obviously did not attempt to enforce the "settlement" but sought to secure a more substantial provision out of the estate. He succeeded in doing so before the Master. When the appellant appealed, the first respondent endeavoured to maintain the order of the Master, once again in disregard of the "settlement". In our view, it is no longer possible for the first respondent to maintain that the settlement had the effect of a continuing offer by him which survived the merging of his claim in the judgment.
6 In the circumstances, the costs in the appeal should follow the event, and the first respondent must pay the appellant's costs of the appeal to be taxed. It would not be appropriate, we consider, to order the costs out of the estate, particularly having regard to the size of the estate and the fact that it would impact adversely upon the first respondent's son's interest.
7 So far as the costs at first instance are concerned, the first respondent should be entitled to some proportion of his costs out of the estate because his application was ultimately successful to the extent of 10 per cent of the residuary estate. We consider that an award of one-third of his costs would be appropriate. This award takes into account the unnecessary costs which have been incurred, and which should not be charged against the estate. It is appreciated that the first respondent's award is likely to be absorbed in the payment of costs for which he is liable. That is the regrettable consequence of a claim having been made in a modest estate, and that claim having gone on appeal.
8 The second respondent has, in the circumstances, waived its entitlement to costs, both at first instance and in the appeal. The order for costs at first instance should therefore be varied accordingly, and there should be no order for costs in its favour in the appeal.
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