Pethers v Pethers (No 2)

[2025] NSWSC 561

Supreme Court

New South Wales

Medium Neutral Citation:

Pethers v Pethers (No 2) [2025] NSWSC 561

Hearing dates:

Mention on 30 April 2025, written submissions provided 2 and 5 May 2025

Date of orders:

2 June 2025

Decision date:

02 June 2025

Jurisdiction:

Equity - Family Provision List

Before:

Meek J

Decision:

Order that the plaintiff pay the defendant’s costs calculated on the ordinary basis.

Catchwords:

SUCCESSION — Family provision — Costs — Statutory framework in which costs orders are made discussed — Purposive approach to costs orders in family provision proceedings discussed

SUCCESSION — Family provision — Costs — Relevance of impecuniosity — Default rules in rr 42.1 and 42.20 UCPR applies to family provision proceedings, though its application remains subject to the Court exercising greater than usual “liberality and discrimination” in deciding whether to depart from it

SUCCESSION — Family provision — Calderbank offers — Unusual deployment of offers by the parties — Unsuccessful applicant seeking to underpin a different costs outcome than provisionally foreshadowed following dismissal of claim notwithstanding the outcome achieved was worse than the offer made — Conversely the successful defendant not seeking indemnity costs notwithstanding the making of an offer giving the plaintiff substantial provision bettering the actual outcome (dismissal of her claim)

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Family Provision Act 1982 (NSW)

Succession Act 2006 (NSW)

Trustee Act 1925 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Adamson v Liu (No 2) [2009] NSWSC 864

Alexiou v Alexiou [2024] NSWSC 1340

Andrew v Andrew (No. 3) [2013] NSWSC 286

Benz v Armstrong; Benz v Armstrong; Benz v Armstrong (No 2) [2022] NSWSC 668

Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327

Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333

Carroll v Cowburn [2003] NSWSC 248

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Croft v Sanders [2019] NSWCA 303

Foster v Lisle [2003] NSWSC 1243

Gabriel v Billett (No 2) [2023] NSWLEC 123

Haertsch v Whiteway (No 2) [2020] NSWCA 287

Jvancich v Kennedy (No 2) [2004] NSWCA 397

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

Liosatos v Liosatos [2025] NSWSC 44

McCusker v Rutter [2010] NSWCA 318; (2010) 7 ASTLR 137

Moussa v Moussa - Costs [2006] NSWSC 509

Murdocca v Murdocca (No 2) [2002] NSWSC 505

Nudd v Mannix [2009] NSWCA 327

O’Brien v McCormick [2005] NSWSC 619

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Penfold v Predny [2016] NSWSC 472

Pethers v Pethers [2025] NSWSC 389

Purnell v Tindale [2020] NSWSC 746

Re Sherborne Estate (No 2): Vanvalen v Neaves; Gilroy v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003

Salmon v Osmond [2015] NSWCA 42; (2015) 14 ASTLR 442

Schneider v Kemeny; Kemeny v Schneider (No 2) [2021] NSWSC 664

Singer v Berghouse [1993] HCA 35; (1993) 67 ALJR 708; (1993) 114 ALR 521

Underwood v Underwood [2009] QSC 107; (2009) 4 ASTLR 150

Wilcox v Chapple [2024] NSWSC 1394

Wild v Meduri (2024) 115 NSWLR 445; [2024] NSWCA 230

Texts Cited:

Dickey, Anthony, Family Provision After Death (1992, The Law Book Company)

Lindsay J, “The Dynamics and Dilemmas of Costs Orders upon an Exercise of ‘Welfare’ Jurisdiction” (Paper), The Blue Mountains Law Society 2023 Succession Conference, 7-8 September 2024

Martyn, Ross, Family Provision: Law and Practice (1985, Sweet & Maxwell)

Moyers, Bill, A World of Ideas (Interview, 17 November 1989) (see endnotes for accessible link)

New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 June 2008

Practice Note SC EQ 07

Category:

Costs

Parties:

Jo Ellen Pethers (Plaintiff / Applicant)
Gregory Pethers (Defendant / Respondent)

Representation:

Counsel:
M Gunning (Defendant / Respondent)

Solicitors:
Parker & Kissane (Defendant / Respondent)

In person (Plaintiff / Applicant)

File Number(s):

2024/00167795

JUDGMENT

1. HIS HONOUR: Correctly discerning meaning from text, speech, gestures and other cues is a vital life skill. A smile or a nod between a couple or friends or strangers “exchanging glances” [1] may be all that is needed to convey and receive clarity of intention.

   1. As the lyrics go in Frank Sinatra’s Strangers in the Night (recorded in 1966, written by Bert Kaempfert, Charles Singleton and Eddie Snyder).

2. However, the frailty of the human condition leads us to frequently only hear what we wish to hear and believe what we wish were true. We are susceptible to “filtering out” the unpleasant and “reading in” the beneficial. Within families, imprecise statements of intention or misconstruction of what is said or written, particularly regarding inheritance of property, has begotten many griefs and spawned much litigation.

3. The plaintiff’s assumed meaning of the Will of her father (the deceased) and speech of her uncle (the defendant) was misguided. Her confidence in her own understanding underpinned her delay in commencing family provision proceedings and forestalled early determination of statements regarding benefit for her in the precatory testament of her father and empathetic comments of her uncle.

4. Peter Drucker’s remark that "the most important thing in communication is to hear what isn't being said" [2] is apt. What was not “being said” by her father and her uncle was a binding promise of quantifiable provision.

   2. See interview with Bill Moyers in 1988: Bill Moyers, A World of Ideas (Interview, 17 November 1989) transcript accessible here:

5. It is impossible to know, and now somewhat futile to second-guess, to what extent greater clarity between the parties and understanding on the plaintiff’s part might have avoided the outcome of her belated and ill-fated claim for provision.

6. On 24 April 2025, I determined that the plaintiff's application to the Court to claim a family provision order over 12 years out of time should be refused and, accordingly, the plaintiff’s summons should be dismissed: Pethers v Pethers [2025] NSWSC 389 (principal judgment or PJ).

7. On the hearing of the application, no particular submissions were made in relation to the costs of the application and I indicated a prima facie view that the costs should follow the event. [3]

   3. PJ [232].

8. I ordered, subject to any application by either party seeking an order otherwise, that the plaintiff should pay the defendant's costs of and incidental to the proceedings on the ordinary basis. [4]

   4. PJ [233].

9. Within minutes of my Associate emailing to the parties (who appeared by AVL) my reasons for judgment, the plaintiff by email to my Associate requested that “costs should lie where they fall” (plaintiff’s costs application). [5] In circumstances briefly described below, each party has now had an opportunity to put forward evidence and make further submissions in relation to costs.

   5. Email sent on 24 April 2024 at 9:29am.

10. Ultimately, I am persuaded that the appropriate order is that the plaintiff should pay the defendant's costs of and incidental to the summons and the application for extension of time on the ordinary basis. Specifically, having regard to the facts of the case and legal principles, I reject the plaintiff’s costs application.

11. Below I set out my reasons for that determination. The reasons make reference to the principal judgment and will adopt its nomenclature and abbreviations. I will cite the material in the proceedings by reference to the abbreviations I have given to the affidavits, exhibits, submissions and transcript (T), Mr Gunning’s written costs submissions (DS) and Ms Pethers’ written reply submissions (PRS).

12. I will briefly set out some context before outlining the substance of the parties’ submissions and then my reasons for my determination on costs.

Context

13. The plaintiff at all material stages of her application before me has been unrepresented.

14. For reasons that are not entirely clear to me, the plaintiff's immediate post-judgment email [6] gave rise to some uncertainty on the part of Ms Binney as to whether the content of the email constituted an “application” for the purpose of Order 4 of the orders made by me on 24 April 2025.

    6. Ibid.

15. On 29 April 2025 at 6:09am, the plaintiff emailed to my Associate and to Ms Binney some further materials.

16. Later that day, I caused my Associate to send an email to the plaintiff and to the defendant's legal representatives, indicating that I regarded the plaintiff's email as being an “application” for the purpose of seeking an alternative costs order. In a context in which it seems the plaintiff wished to adduce some evidence on that application, I proposed a relisting of the matter to clarify the position and to address the question of any submissions or any further evidence that the parties wish to put forward on the matter.

17. After some correspondence to fix an acceptable time for the relisting, the relisting was appointed for 30 April 2025.

18. On 30 April 2025, the plaintiff appeared (as she has previously done, via AVL) and Mr Gunning appeared (also by AVL) for the defendant.

19. Mr Gunning confirmed that the defendant sought an order that the plaintiff pay the defendant's costs of and incidental to the application on the ordinary basis. At that stage, he was not able to indicate the quantum of the costs likely to be sought. Ms Pethers had, in the emails provided, given some degree of financial disclosure regarding her income and I sought to understand whether she was only intending to put forward information of her income or whether she was intending to put forward information as to her assets and liabilities as well. It was not entirely clear to me that Ms Pethers understood the difference between only adducing evidence as to income on the one hand and adducing evidence as to assets and liabilities on the other hand. For that reason, I attempted to clarify the position. Consistent with dealing with self-represented parties, I indicated to Ms Pethers that I could not advise her as to what evidence (if any) she might choose to put forward, but I could give her an opportunity to put on evidence should she wish to adduce it.

20. During the listing, in formulating a timetable to address costs, Ms Pethers made the disclosure to the Court that she was due to give birth relatively soon and was booked to be admitted to hospital for an elective caesarean shortly. In that context, she and Mr Gunning proposed an expedited timetable for putting on submissions and evidence.

21. I made the following orders:

THE COURT:

1.   Notes that the material provided by the plaintiff in her emails dated 24 April 2025 at 9:29am and 29 April 2025 at 6:09am to the Associate to Meek J set out the totality of the evidence and submissions that the plaintiff relies upon on the question of costs.

2.   Directs the defendant to file and serve any evidence and submissions on the question of costs by 4pm on Friday, 2 May 2025.

3.   Directs that the plaintiff reply to the defendant’s evidence (if any) and submissions by 4pm on Wednesday, 7 May 2025.

4.   Notes that the parties are content for the matter to be dealt with in chambers without the necessity of any formal hearing on costs.

Costs principles in family provision proceedings

General principles

22. Decisions made by the Court about the costs of proceedings like other aspects of the Court’s jurisdiction are made in accordance with applicable legislation, rules of court and Practice Notes, having regard to the underlying purposes to be served by those provisions.

23. The purpose and underlying rationale for an award of costs is essentially compensatory in the sense of being awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings. Costs are not awarded by way of punishment of the unsuccessful party. [7]

    7. Latoudis v Casey (1990) 170 CLR 534 at 543 (per Mason CJ); [1990] HCA 59.

24. The context of the purposes of family provision legislation has been outlined in a number of cases including recently by myself in Liosatos v Liosatos [2025] NSWSC 44 (Liosatos) at [12]-[20].

25. Specifically, in 2008, legislative reforms focused on widely held concerns about the increasing and disproportionate costs of family provision proceedings. [8] Costs concerns were addressed by a number of different strategies, including enactment of regulation making power with respect to costs and advertising, and encouragement for the settlement of family provision matters before they go to a hearing, if possible, by requiring referral of all matters to mediation before making a family provision order unless there are special reasons why the matter should not be mediated. [9] Those objectives are evident in the provisions of ss 98(1), (2), (4)(b) and 99(2) of the Succession Act 2006 (NSW) (Succession Act).

    8. New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 June 2008 at 9423-9424 per the Honourable John Hatzistergos.

    9. Liosatos at [16].

26. The current legislative framework which provides the rationale for making costs orders in family provision cases includes:

1. Civil Procedure Act 2005 (NSW) (CPA), especially s 98;

2. Succession Act, especially s 99;

3. Trustee Act 1925 (NSW) (Trustee Act), especially s 59;

4. Uniform Civil Procedure Rules 2005 (NSW) (UCPR), especially Pt 42; and

5. Practice Note SC EQ 07 – Probate and Family Provision List (PN EQ 7).

27. Costs are in the discretion of the Court, subject to the CPA, rules of Court and any other Act. [10]

    10. CPA s 98(1)(a).

28. The Court has full power to determine by whom, to whom and to what extent costs are to be paid [11] and may order that costs are to be awarded on the ordinary basis or on an indemnity basis. [12]

    11. CPA s 98(1)(b).

    12. CPA s 98(1)(c).

29. Generally, if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs. [13]

    13. UCPR r 42.1.

30. If the Court makes an order for dismissal of the proceedings, unless the Court orders otherwise, the plaintiff must pay the defendant’s costs of the proceedings to the extent to which they have been dismissed. [14]

    14. UCPR r 42.20(1).

31. Generally, costs payable to a party under an order of the Court are to be assessed on the ordinary basis. [15]

    15. UCPR r 42.2.

32. Some striking and important coherences are evident between purposes informing costs orders generally in the conduct of civil litigation and those specifically in the conduct of family provision proceedings.

33. The overriding purpose in the conduct of civil litigation is that parties should assist the Court in facilitating the just, quick and cheap resolution of real issues in such litigation [16] and that the proceedings should be conducted in such a way that the cost of the parties is proportionate to the importance and complexity of the subject-matter in dispute. [17]

    16. CPA s 56.

    17. CPA s 60.

34. Likewise, in family provision proceedings, the Court expects that the resources of an estate and of the Court will not be used in a manner that is out of proportion to the size of the estate or any provision that may be made. [18]

    18. PN EQ 7 [5].

35. Further, PN EQ 7 contains guides that inform the purposive approach of the Court to the question of costs in family provision proceedings (including those where family provision cases are coupled with probate claims). Thus:

1. contemporaneously with the filing of a summons, an affidavit is to be provided by legal practitioners estimating the costs of parties at least up to and including the completion of any mediation and, in particular, whether any aspect of a costs agreement as between the client and the relevant solicitor involves any uplift factor in costs; [19]

   19. PN EQ 7 [15.3].

2. at the first directions hearing:

1. directions will be made expressly for the purpose of making information available at the earliest practicable date so that parties may make a realistic assessment of their respective cases; [20] and

2. directions may be made for the filing and/or service by the administrator of an affidavit providing (relevantly) an estimate of the administrator’s costs and disbursements, calculated on an indemnity basis, up to, and including, the completion of a mediation; [21]

3. where the proceedings combine a family provision application with probate proceedings, directions will be tailored, so far as is practicable, to avoid duplication and limit costs; [22] and

4. orders may [23] be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the net distributable value of the estate (excluding costs of the proceedings) is less than $1,000,000. [24]

   20. PN EQ 7 [17].

   21. PN EQ 7 [18.13].

   22. PN EQ 7 [10].

   23. The word “may” is underlined for emphasis, which is only viewable on the Caselaw website.

   24. PN EQ 7 [40].

36. Therefore, there is jurisdiction to cap costs in family provision proceedings. Attempts at capping costs prior to the introduction of the CPA were informed at least in part by concern regarding the level of costs generated in family provision proceedings and the attempts two decades ago by the then Chief Judge in Equity to educate the profession and inculcate a culture within the profession of giving serious consideration to compromise in family provision claims including those involving infants or others under an incapacity, particularly claims upon small estates. [25]

    25. See Carroll v Cowburn [2003] NSWSC 248 per Young CJ in Eq at [31]-[36]; see also Foster v Lisle [2003] NSWSC 1243 at [76].

37. Concern regarding capping of costs and the extent of the power under r 42.4 of the UCPR was examined by Palmer J in the seminal decision of Re Sherborne Estate (No 2): Vanvalen v Neaves; Gilroy v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003 (Re Sherborne). [26] Purposes informing the exercise of a power to cap costs and limit costs were described by Palmer J as including (though I infer not limited to) the Court’s role in curbing the tendency of parties to engage in disproportionate expenditure on legal costs and the desire of parties to zealously vindicate through family provision proceedings family grievances or personal animosity. [27] The extent of the Court’s power to cap costs and the appropriateness of doing so in any given case was the subject of particular comment by the Court of Appeal in Jvancich v Kennedy (No 2) [2004] NSWCA 397 and later in Nudd v Mannix [2009] NSWCA 327. [28] More recently, it has been discussed by Lindsay J in Alexiou v Alexiou [2024] NSWSC 1340 (Alexiou).

    26. At [21]-[31].

    27. Re Sherborne at [26]-[29].

    28. Per Handley AJA at [23]-[27], McColl and Macfarlan JJA at [1], [2] agreeing.

38. It has been said that s 98 of the CPA confers a very wide costs discretion. It enables the Court to decide who should bear the costs of litigation before it, quite independently of whether those costs do, or do not, amount to testamentary expenses. [29]

    29. Murdocca v Murdocca (No 2) [2002] NSWSC 505 per Campbell J at [70].

39. The nature and scope of the Court’s “costs jurisdiction” in family provision proceedings has been the subject of elucidation both in caselaw [30] and extrajudicially. [31]

    30. Benz v Armstrong; Benz v Armstrong; Benz v Armstrong (No 2) [2022] NSWSC 668 (Benz) per Ward CJ in Eq at [26]-[27].

    31. Lindsay J, “The Dynamics and Dilemmas of Costs Orders upon an Exercise of ‘Welfare’ Jurisdiction” (Paper), The Blue Mountains Law Society 2023 Succession Conference, 7-8 September 2024.

40. In specialist lists of the Court’s business, as noted by Lindsay J, the Court routinely departs from the general rule that “costs follow the event” so as to accommodate the purpose for which a particular jurisdiction exists. [32]

    32. Alexiou at [116].

41. If family provision claims are coupled with other relief such as a probate suit, a Will construction suit, or a trust or estoppel claim, other statutory principles inform the discretionary award of costs.

36. In family provision proceedings per se or family provision proceedings that are coupled with other estate litigation, elements that impact upon the question of costs include:

1. the role the parties play in the proceedings, including in particular whether they have a representative role in respect of the estate;

2. the subject matter of the litigation and whether a particular part of the estate property (or any designated notional estate) in the opinion of the Court is the real subject matter of the proceedings; [33]

3. whether the estate representative as an executor or administrator or properly described as a “trustee” has had the benefit of judicial advice in respect of defence of the proceedings, [34] or, if appointed pursuant to r 7.10(2)(b) of the UCPR to represent the deceased’s estate, has sought advice or is able to obtain advice; [35] and

4. whether there are limitations on designating property for the purposes of making a costs order. [36]

   33. Trustee Act s 93(3).

   34. Trustee Act s 5 (definition of “trustee”) and s 63.

   35. Reeves v Reeves (No 2) [2024] NSWSC 386 in particular [214]-[242].

   36. Succession Act s 78(2) - there is a limitation on making orders designating property as notional estate for the purposes of payment of an applicant’s costs unless the Court has made a family provision order in favour of the applicant.

43. The precise approach to costs under the various family provision legislation that has prevailed in New South Wales has certain common elements but is nonetheless sensitive to precise statutory provisions applicable in each case. Thus, in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 (Chapple v Wilcox), Basten JA (with whom Gleeson JA at [150] relevantly agreed) stated:

25. The costs of the trial and the appeal should be considered separately. With respect to proceedings under the repealed Family Provision Act,this Court accepted that s 33(1) of that Act conferred a broad discretion as to costs payable out of the estate, not constrained by the general rule that costs follow the event: Diver v Neal [2009] NSWCA 54; 2 ASTLR 89 at [75]-[78]. If the new Act applied, Diver v Neal said that s 99(1) of the Succession Act provides a general power, not confined by the considerations identified in s 33: at [81].

26. Neither s 99, nor its predecessor, apply to costs as between party and party, as opposed to costs to be paid out of the estate….

44. Evident from what I have indicated above, the role that the parties play in the proceedings has an impact upon the nature of the costs orders made. The defence of family provision proceedings is in most cases undertaken by a party in a form of representative role whether that person be an executor under a Will, an administrator of the estate or a person who is not an administrator but has been appointed pursuant to court rules.

45. Representative costs in defence of family provision proceedings, unless unreasonably incurred or incurred in circumstances in which the representative has in substance acted for his or her own benefit rather than for the benefit of the estate, [37] will ordinarily fall within the description of being a “testamentary expense” and for that reason be payable out of the estate, calculated on the indemnity basis. [38]

    37. See e.g. UCPR r 42.25(2).

    38. See e.g. Trustee Act s 59(4); O’Brien v McCormick [2005] NSWSC 619 per Campbell J at [56]; Andrew v Andrew (No. 3) [2013] NSWSC 286 per Hallen J at [45].

46. Generally speaking, and subject to any applicable costs offers, ordinarily the costs of the successful plaintiff will be paid out of the estate calculated on the ordinary basis. [39]

    39. Benz at [27].

47. More vexing questions arise in respect of costs of unsuccessful plaintiffs in family provision proceedings and in this respect caselaw reveals a greater degree of variation and flexibility of principles and costs’ guides. Nonetheless, some observations can be made.

48. First, it has been said that family provision cases stand apart from cases in which costs follow the event and that costs in family provision cases generally depend on the “overall justice of the case”: Singer v Berghouse [1993] HCA 35; (1993) 67 ALJR 708 at 709; (1993) 114 ALR 521 at 522 (Singer No.1) per Gaudron J.

49. Secondly, the Court of Appeal has acknowledged that: [40]

the “overall justice of the case” referred to by Gaudron J is “not remote from costs following the event”: Jvancich v Kennedy (No 2) [2004] NSWCA 397. The only difference is that family provision cases call for additional “liberality and discrimination” in considering whether to exercise the discretion to override the usual rule: Chapple v Wilcox [2014] NSWCA 392 at [138]-[139].

40. Salmon v Osmond [2015] NSWCA 42; (2015) 14 ASTLR 442 (Salmon v Osmond) at [174] per Beazley P (McColl and Gleeson JJA agreeing at [180] and [181] respectively).

50. Thirdly, contrary to the submissions of Mr Gunning (see below), the financial circumstances of an unsuccessful applicant may in family provision proceedings be a material consideration, though not necessarily a compelling (let alone decisive) consideration, in assessing an appropriate costs order.

51. In Singer No.1, Gaudron J observed that: [41]

It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant's financial position. [42] And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate. [43]

41. ALR at 522.

42. Citing Anthony Dickey, Family Provision After Death (1992, The Law Book Company) (Dickey) pp 184-5; as to the position in the United Kingdom, see Ross Martyn, Family Provision: Law and Practice (1985, Sweet & Maxwell) (Martyn) pp 77-8.

43. Citing Dickey, ibid. Note that it is said by Martyn, at p 78, that, in the United Kingdom, an unsuccessful applicant "will be very lucky indeed if he gets his costs out of the estate".

52. More recently, the Court of Appeal in Haertsch v Whiteway (No 2) [2020] NSWCA 287 (Haertsch) per Macfarlan, Meagher and Leeming JJA summarised the position regarding costs of unsuccessful applicants as follows: [44]

7. It is not uncommon, though atypical, for an unsuccessful applicant not to be ordered to pay the defendant’s costs where the applicant is or would become impecunious and the claim for provision was reasonable or borderline: see eg, with no attempt to be exhaustive, Re Sherborne Estate (No 2) (2005) 65 NSWLR 268; [2005] NSWSC 1003; Moussa v Moussa [2006] NSWSC 509; Bevilacqua v Robinson (No 2) [2008] NSWSC 520; Ray v Greenwell [2009] NSWSC 1197; Dugac v Dugac [2012] NSWSC 192; Raiola v Raiola [2014] NSWSC 1172; Purnell v Tindale [2020] NSWSC 746.

…

9. The impecuniosity of an unsuccessful party, without more, is no reason to deprive a successful party of an order for costs to which they are otherwise entitled: Sassoon v Rose [2013] NSWCA 220 at [10] (Meagher JA, Gleeson JA agreeing); Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [26]-[27]. However, the irrelevance of impecuniosity is said to be “subject to some relaxation in family provision cases”: Chapple v Wilcox at [141]. One reason that the impecuniosity of an unsuccessful applicant for family provision is of greater than usual relevance is that adverse costs orders might alter the basis on which the claim for provision was rejected, and thereby cause or justify a further application: McCusker v Rutter [2010] NSWCA 318 at [34].

44. Haertsch at [7], [9]. See generally also Re Sherborne at [61]-[66] and Moussa v Moussa - Costs [2006] NSWSC 509 (Moussa) at [12]; McCusker v Rutter [2010] NSWCA 318; (2010) 7 ASTLR 137 per Young JA at [33]-[34]; Purnell v Tindale [2020] NSWSC 746 per Henry J at [333]; Penfold v Predny [2016] NSWSC 472 per Hallen J at [167]; Schneider v Kemeny; Kemeny v Schneider (No 2) [2021] NSWSC 664.

53. Different approaches prevail within the Australian Federation. The Court of Appeal observed that in some jurisdictions it would seem that no order as to costs is the usual or general consequence of an unsuccessful application. [45]

    45. Haertsch at [5] citing Bowyer v Wood (2007) 99 SASR 190 at 210, 211; [2007] SASC 327; Underwood v Underwood [2009] QSC 107; (2009) 4 ASTLR 150 at [32]-[33].

54. Whilst Haertsch involved an application under the Family Provision Act 1982 (NSW), the comments and guidance of the Court of Appeal regarding costs in the judgment are clearly of general relevance and application to family provision claims under the Succession Act.

55. The default rule in r 42.1 of the UCPR (and I infer also r 42.20 UCPR) applies to family provision proceedings. However, it has been said that “its application remains subject to the Court exercising greater than usual “liberality and discrimination” in deciding whether to depart from it”. [46]

    46. Haertsch at [6] citing Salmon v Osmond at [174] (Beazley P, McColl and Gleeson JJA); Chapple v Wilcox at [26]-[27] (Basten JA, Gleeson JA agreeing); [138]-[139] (Barrett JA, Gleeson JA agreeing).

56. It is notorious in succession law that predictability of the outcomes of family provision claims is not quantifiable by the parties’ legal advisers prior to judgment with anything like the degree of certainty that applies in other areas of civil law. [47]

    47. Re Sherborne at [56]-[58].

57. Further, it has been said that “although family provision claims can only succeed or fail, those binary outcomes tend to conceal difficult and even “borderline” questions of the nature of the evaluative and discretionary judgment of such claims. That is one reason for the more liberal approach to costs.” [48]  

    48. Haertsch at [11] citing Re Sherborne at 279 and Moussa at [8].

Costs offers

58. Under the UCPR, there is a regime by which offers of compromise may be served to compromise any claim in civil proceedings. [49] The complexity of outcomes in family provision proceedings may be a factor that needs to be taken into account in the formulation of any such offer of compromise. [50]

    49. See generally UCPR rr 42.14, 42.15, 42.15A.

    50. Alexiou at [152].

59. In this case, there are no such relevant offers of compromise.

60. However, standing apart from the offer of compromise, regime costs offers may be made by parties. In this case, both parties made reference to what is commonly described as a ‘Calderbank’ offer expressed to be without prejudice except as to costs and relied upon in accordance with the principles in Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333 (Calderbank).

61. There is no prima facie entitlement of a party who has achieved a favourable outcome (having regard to the terms of the offer) to have an indemnity costs order made in its favour. Rather, the making of a Calderbank offer is one of a number of circumstances the Court takes into account in exercising its discretion to make an order for costs on an indemnity basis.

Submissions

Plaintiff’s submissions

62. The plaintiff in her email dated 24 April 2025 at 9:29 am made the following submission:

I would like to submit to the Court my Calderbank offer that was presented to the Defendant for this case on the 19th of June 2024, to serve as an application to have costs for this matter to lie where they fall. I believe I made an effort that was reasonable to settle this matter away from Court and feel disadvantaged in many ways that I did not receive real financial benefit from my late fathers estate. An order of costs would disadvantage me and my family further as it would create an unserviceable debt where I could potentially lose the home in which I live.

Please advise if there is any further information which I need to provide. 

63. The “Calderbank” offer attached to that email is a letter dated 24 June 2024 by the plaintiff to Ms Binney. The letter recited various aspects of context which the plaintiff wished to emphasise regarding the matter and some analysis of the plaintiff's understanding of the size of the deceased’s estate and increase in land value of “The Glen” property.

64. The specific offer made by the plaintiff is as follows:

I therefore would like to make the following offer to your client:

1. That a settlement sum of $170,000.00 Australian dollars is made as a limited offer to your client.

2. That this payment would serve as a final settlement satisfying any claim against your client or my late father's estate.

3. I would agree to release my rights in writing pursuant to section 95 of the Succession Act.

4. The Settlement sum would be paid to my account within 60 days.

This offer will remain open for 28 days from today's date.

This offer is made without prejudice save as to costs.

65. On 29 April 2025 at 6:09 am, the plaintiff sent to my Associate copied to Ms Binney an email attaching certain financial information.

66. The email stated as follows:

For full transparency please find attached New Zealand dollar financial income detail, including information on accommodation and child related allowances. 

This may assist if the defence are wishing to file a response to my application to have cost lie where they fall. 

67. Three documents were attached to the email.

68. The first document is a printout from New Zealand Inland Revenue (NZIR) generated on 29 April 2025 indicating that the plaintiff's income for the year period 1 April 2024 to 31 March 2025 is a total of $29,672.29 with PAYE and tax deductions of $4,139.49.

69. The second document, also from the NZIR issued on 25 February 2025 discloses the plaintiff's new entitlement of financial benefits proposed to be a family tax credit of $72 a week for the period from 1 April 2025 to 31 March 2026.

70. It projects the plaintiff's estimated family income to be a total of $15,407.04 (presumably per annum) based on a sum of $10,149 for child support received through NZIR and other benefits of $5,257.04.

71. The third document is a printout of “financial information” from “MyMSD” (which appears to be a portal associated with the New Zealand Ministry of Social Development) which contains various financial details for the plaintiff. The first of the three pages of the document indicates that the plaintiff has no disclosed partner and one child.

72. The detail of the payments is as follows:

Weekly payments (after tax)

1. Jobseeker support $492.67

2. Accommodation supplement $122

3. Winter energy payment $31.82

Total $646.49

73. The child disability allowance for Ava is $121.10 which appears to be paid fortnightly. The form notes that the plaintiff receives child support paid to her via NZIR in the sum of $203.75 weekly.

74. Details of the accommodation supplement costs are as follows:

1. essential repairs and maintenance $3,000 annually;

2. rates $2,265.45 annually;

3. water rates $339.50 six monthly;

4. mortgage $1,010.08 monthly; and

5. house insurance (including contents) $91.24 monthly.

75. Finally, the document references the fact that the plaintiff has a debt with MSD originally in the sum of $200 for other essential or emergency needs repaid at the rate of $2 per week with a balance of $56 owing.

Defendant’s submissions

76. Mr Gunning opposed the plaintiff’s costs application. [51] He assumed the application was based on two grounds, namely (a) her impecunious financial position and (b) her Calderbank letter. [52]

    51. DS [2], [3], [12], [14].

    52. DS [8].

77. Mr Gunning, whilst noting the plaintiff had put before the Court some evidence of her income, stated that it was not a complete disclosure of her financial circumstances in that she had not put forward details of her assets and liabilities. [53] In particular, he noted that the plaintiff had referred to a mortgage over her property during the listing on 30 April 2025, but emphasised that she had chosen not to put that material before the Court. [54]

    53. DS [12].

    54. DS [11].

78. In relation to the plaintiff’s financial position, Mr Gunning made two submissions.

79. First, that the impecuniosity of a party is not a reason to decline to make a costs order where the usual rule that costs follow the event applies, citing Adamson v Liu (No 2) [2009] NSWSC 864 (Adamson) per Forster J at [25] and Gabriel v Billett (No 2) [2023] NSWLEC 123 (Gabriel) per Robson J at [32]. [55] I pause to observe that the decisions in Adamson and Gabriel did not involve family provision claims and Mr Gunning’s submission does not take into account the more “liberal” position as outlined by the Court of Appeal in Haertsch above.

    55. DS [9], [10], [13].

80. Secondly, he submitted that, because the plaintiff’s financial disclosure was limited, it could not support her application without a more complete disclosure of her financial circumstances. [56]

    56. DS [12].

81. In relation to the plaintiff’s Calderbank offer, Mr Gunning submitted, having regard to the dismissal of the plaintiff’s summons, it was “certainly reasonable and justified for the defendant to decline the offer” [57] and “there is no reason to depart from the usual rule that costs follow the event, on the basis of a Calderbank offer that exceeded the ultimate outcome for the plaintiff by a significant margin”. [58]

    57. DS [17].

    58. DS [18].

82. In addition, Mr Gunning relied upon two without prejudice offers made by the defendant offering a settlement to the plaintiff involving a payment of $60,000 in the following context.

83. The first offer is in a letter from Parker & Kissane to the plaintiff dated 18 June 2024. It made various observations regarding the matter and stated “it is our view that your Application to proceed out of time will not succeed”.

84. The letter asserted:

Our client will also suffer significant prejudice if you are granted leave to pursue a claim for provision out of the estate, 12 years after the expiry of the limitation period. For this reason alone, your Application is likely to fail.

If your Application is unsuccessful, our client will seek an order that the legal costs incurred by our client in defending the ultimately failed proceedings be paid by you. Our client does not wish for that course of action to take place.

85. The letter then made an offer in the following terms:

Our client has instructed to make an offer to pay to you, on behalf of the estate of your late father, the sum of $60,000.00, inclusive of your costs (“the Settlement Sum”), on the following terms:

1) the Settlement Sum is to be paid to you in lieu of any provision made to you in the last will of your late father;

2) you release your rights to apply for any further family provision order, with such a release to be in writing and approved by the Court pursuant to section 95 of the Succession Act 2006;

3) the Settlement Sum is to be paid to you in full and final satisfaction of any claim you have or may have against our client or your late father’s estate; and

4) the Settlement Sum is to be paid within 60 days.

This offer is made without prejudice but may be tendered on the question of costs in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333.

The offer will remain open and capable of acceptance for 28 days from today’s date.

Should you not accept the offer our client will rely upon this letter on the question of costs, which may include an application by our client for costs on the indemnity basis.

86. The second offer was in a letter from Parker & Kissane to the plaintiff dated 2 July 2024. It opened as follows:

We refer to the above matter and to your correspondence of 21 June 2024.

Our client rejects your offer.

However, we are again instructed to repeat our earlier offer of settlement put forward in our letter of 18 June 2024.

87. It is unclear to me whether the reference in that letter to the plaintiff’s correspondence of “21 June 2024” is a reference to the plaintiff’s Calderbank letter dated 19 June 2024, perhaps received on 21 June 2024, or some other document. In any event, whether it be the plaintiff’s Calderbank offer or some other document, the offer was rejected and the Calderbank offer in the first letter repeated. However, on this occasion no particular time limit was placed on the offer.

87. The letter did indicate that, should the plaintiff not accept the offer, the defendant would “seek indemnity costs against you if you fail in your application, noting that despite the terms of the will you did not seek provision when your sister did”. Additionally, the letter foreshadowed seeking instructions to apply for security for costs.

88. The plaintiff’s response to that by email sent on 2 July 2024 was as follows:

I don’t think I need to do a formal letter to reject this offer. It is the same as the last.

My position remains unchanged.

90. In light of the above, Mr Gunning concluded his submissions as follows:

20. This correspondence demonstrates that the defendant made reasonable attempts to resolve the plaintiff’s claim at an early stage of the proceedings, before the incurring of significant legal costs.

21. If the plaintiff had accepted the offer of $60,000.00, which had been repeated by the defendant on 2 July 2024, there would have been no need for a hearing on 8 October 2024, or for the preparation of evidence and submissions.

22. It is respectfully submitted that the existence of this without prejudice correspondence further justifies and warrants an order that the plaintiff pay the defendant’s costs on the ordinary basis.

Plaintiff’s reply submissions

91. The plaintiff addressed a number of matters she says have a significant effect on the fairness of any proposed costs order in favour of the defendant, including the asserted complexity of the case. [59]

    59. PRS [2].

92. The aspects of complexity referenced by the plaintiff included the deceased’s Will, his suicide, his mental health condition, and a question as to whether the deceased lacked testamentary capacity to make the Will that he did. [60]

    60. PRS [3]-[7].

93. The plaintiff stated: [61]

A family provisions claim was pursued by Hannah and in a sense abandoned by myself.

61. PRS [8].

94. The plaintiff observed (correctly) that White J’s judgment regarding the s 8 proceedings did not attempt to construe the deceased’s Will and there was not any particular court decision which ventured a finding as to the meaning of the Will until my comments in the principal judgment. [62] She noted that if the deceased had died intestate she would have received half of the deceased’s estate and contended that the defendant received “an unnatural amount of benefit from the estate compared to” herself. [63] She posed the rhetorical question:

My question would then be, is it right that a person who could have potentially "got everything", or almost everything (a share of half the estate through intestacy rules) through another path in the law could be left with "less than nothing" as she is effectively punished for making (her only) request for provisions to be made?

62. PRS [9], [11].

63. PRS [10]-[12].

95. In response to the defendant’s Calderbank offer, the plaintiff contended that “a higher settlement figure would have been more appropriate” based on a number of considerations.

96. One such consideration highlights the plaintiff’s unfulfilled expectations as to intentions of both the deceased and the defendant to provide her with benefit which I referenced at the commencement of this judgment and had dealt with in the principal judgment. [64]

    64. PJ, see in particular at [198]-[217].

97. The plaintiff submitted that another consideration was what she regarded as being the value of “The Glen”. She made reference to some of the evidence that I have cited in the principal judgment and also an online search of a website “pulse.auctionplus.com.au”. Based on the website’s reporting of price increases on farmland generally, she provides an estimate of the value of the property in 2024 as approximately $1,725,839.50. [65] The plaintiff claimed that, based on that value, the amount that she had sought in her Calderbank offer could be less than 10% of the value of “The Glen” and asserted her belief that her offer was “more than fair and reasonable”. [66]

    65. PRS [21]-[22].

    66. PRS [23]-[24].

98. Next, the plaintiff made a number of submissions addressing the “Overall Justice of the Situation”.

99. First, she acknowledges that her feeling of being disadvantaged in not receiving “any real financial benefit” from the deceased’s estate are circumstances “at least in part a consequence of my own actions or some could say naivety”. [67]

    67. PRS [25].

100. Secondly, the plaintiff referenced comments in the principal judgment, including the failure to serve on the plaintiff a Notice of Claim. [68]

     68. PRS [26].

101. Thirdly, the plaintiff deployed a number of submissions declaring aspects of her lack of understanding of how the probate caveat had been removed and when that occurred. [69] In particular, she believed that there were failures regarding service of documents and notification to her. [70] She used language suggesting that the defendant’s legal representatives might have tactically taken advantage of her by contacting her prior legal representatives for certain purposes and herself for others. [71]

     69. PRS [26]-[47].

     70. PRS [28].

     71. PRS [30].

102. Fourthly, the plaintiff reiterated submissions that had been put and dealt with by me in the principal judgment regarding her contact with the defendant and her belief that she would still receive some payments from the defendant, which belief she ceased to hold in March 2024. [72]

     72. PRS [38].

103. Fifthly, the plaintiff returned to a number of matters regarding “The Glen”. [73]

     73. PRS [48]-[54].

104. Sixthly, the plaintiff addressed the relationship between herself and her father. She noted “The alienation that occurred between father and daughter was no fault of myself or my sister” and “Both Hannah and I reached out to our father in our own time and in our own way in our adulthood”. [74]

     74. PRS [57]-[58].

105. The plaintiff reiterated her belief that her father by his Will intended that she be provided for. [75] She emphasised that when she thought that “the farm was at risk of being liquidated”, she felt the need to assist her Uncle. [76]

     75. PRS [56], [59], [60].

     76. PRS [54].

106. In particular, the plaintiff intimated that she was not aware that the hearing and determination of Hannah’s proceedings would be resolved without consideration of her own position. [77]

     77. PRS [55].

Determination

107. There are some cases, of which this is one, in which one may well feel some sympathy for the plight of the plaintiff.

108. The plaintiff, as one of only two children of the deceased, has suffered in tragic circumstances the death of her father. She received no provision under his Will. For some period of time, she had a form of joint representation with her sister in respect of advice regarding their father’s estate. In circumstances elaborated in the principal judgment, the plaintiff ceased to have legal representation and ultimately stood by and became cognisant that her sister obtained a substantial legacy in the sum of $230,000 agreed to by the defendant and approved by the Court. Further, it seems that the plaintiff, for altruistic reasons emphasised from her perspective, was attempting to be accommodating of the defendant’s circumstances by not bringing a claim but rather waiting for some opportune time to work out an arrangement for provision for her from the defendant. [78]

     78. PRS [54].

109. However, the plaintiff does not expressly contend that sympathy for her position is a basis for supporting the orders she seeks. In any event, sympathy is not a legitimate basis to deprive a successful party of his or her costs. [79]

     79. Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [90] per McHugh J.

110. Rather, the plaintiff contends that the “overall justice” of the case, detailed to some extent in the principal judgment and further in her submissions, justify the costs orders she seeks.

111. Broadly speaking, having regard to the above-mentioned principles and the overall justice of the case, I consider that the appropriate order is, as I have noted above, that the plaintiff pay the defendant’s costs of and incidental to her application. Without attempting to exhaust my reasons for that determination, I note the following matters to which I have had particular regard.

112. First, the plaintiff was unsuccessful in her application.

113. Secondly, the Calderbank offers to resolve the proceedings properly contextualised and analysed give no reason to depart from the usual order that costs would follow the event. Indeed, they favour the costs order I will make. Unusually, the parties highlighted their respective Calderbank offers contrary to the way that such offers are ordinarily deployed. The plaintiff’s Calderbank offer proposed a substantial payment in her favour which was not obtained by her, yet she sought to rely upon it as evincing some reasonable attempt from her perspective to resolve the matter. The defendant achieved a significantly better outcome than his Calderbank offer offering the plaintiff a substantial sum which, in light of my dismissal of her application, she will not receive and he does not have to pay, yet he did not seek an order for the plaintiff to pay his costs on a basis other than the ordinary basis.

114. Thirdly, it does not avail the plaintiff to assert that the defendant as the deceased’s brother received “an unnatural amount of benefit from the estate compared to” herself. Sometimes the question of whether a Will is inofficious may bear upon the question of whether the Will is a valid Will. [80] However, a beneficiary in a family provision claim does not need to justify why they have been regarded as being a chosen object of beneficence. It is within the province of a testator for whatever reason to prioritise claims upon his estate. [81] Disparity of benefit does not speak directly to the question of costs.

     80. Croft v Sanders [2019] NSWCA 303 per White JA at [126]; Wild v Meduri (2024) 115 NSWLR 445; [2024] NSWCA 230 per Bell CJ at [261]-[263].

     81. See for example, Wilcox v Chapple [2024] NSWSC 1394 per Ward P at [728]; Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 per Meagher JA at [42]-[43] (Gleeson JA at [76], and Leeming JA at [77] agreeing).

115. Fourthly, whilst the financial circumstances of an unsuccessful applicant may in appropriate cases be a material consideration bearing upon the making of a costs order, in this case there is some difficulty in placing particular emphasis on the plaintiff’s financial circumstances. As I observed on the directions listing, and as submitted by Mr Gunning, the plaintiff has not made a full disclosure of her financial circumstances. She has provided some details of her income and I accept that material on the face of it. However, the material is incomplete. There is no particular disclosure of her assets (nor financial resources readily available to her, if any).

116. Fifthly, whilst the plaintiff has made a submission opining as to the value of “The Glen”, she did not adduce any specific evidence in that regard. Procedurally, it would not be fair to the defendant to have regard to the plaintiff’s assertions as to the value of the “The Glen” when those assertions are made in reply submissions without any opportunity for the defendant to now respond to them. The directions made to deal with the question of costs were intended to ensure that the plaintiff adduced any evidentiary material she wished to rely upon in chief so that the defendant would have an express opportunity to respond to it.

117. Sixthly, the fact that the s 8 proceedings did not attempt any construction of the deceased’s Will is not unusual. Self-evidently there is a difference between a question as to whether a document is a valid Will or not and a question as to the meaning of the document which has been found to be a valid Will. It has been relatively common parlance in the law to describe proceedings dealing with the first question as “probate proceedings” and proceedings dealing with the second question as “construction proceedings”. Leaving aside for the moment the question as to whether the expression “probate proceedings” is an apt description or not, it suffices to observe that whilst historically probate proceedings have been dealt with prior to construction proceedings and in more recent decades often both questions are dealt with together, there is no legal requirement that questions as to the construction of a testamentary instrument must necessarily be dealt with at the same time as the question of validity of a testamentary instrument. Principally, whether those issues are dealt with together or not is a case management issue.

118. Importantly, the point is that, to the extent that the plaintiff had any doubt about whether the defendant was under a legal obligation to provide for her and contends that there was no judicial decision, whether binding or nonbinding, commenting upon whether there was a legal obligation under the Will to provide for her, I do not regard it as being a significant factor bearing upon the question of costs. If the plaintiff had wished to seek clarity regarding the meaning of the deceased’s Will, it was open to her to apply to the Court for a decision regarding that well before seeking belated family provision relief.

119. What I have said regarding the plaintiff’s failure to take steps to clarify the deceased’s intentions for her arising from the Will equally and sadly applies in respect of her discussions with the defendant and her misconstrued beliefs regarding his intentions.

120. Seventhly, whilst in the principal judgment I addressed issues regarding service of a Notice of Claim on the plaintiff, I reject the notion that the defendant’s legal representatives were involved in any service failures for tactical reasons. That is a serious allegation which has not been fairly raised with the defendant or his legal representatives. A final reply submission is not the place for raising such allegations.

121. Seventhly, whilst I have considered the balance of the parties’ submissions they do not in my estimation require a different outcome from that which I have indicated.

122. Ultimately, whether the costs order that I have ordered is enforced in part or at all is a matter in which the defendant might wish to reflect in his interactions with the plaintiff. However, it is not a matter on which it is appropriate for me to comment.

Conclusion

123. The orders of the Court are:

1. Order that the plaintiff pay the defendant’s costs of and incidental to her summons and the hearing of the application in respect of an extension of time, calculated on the ordinary basis.

2. Order that, to the extent that there is any deficiency as between the defendant’s costs calculated on the ordinary basis and his costs calculated on the indemnity basis, that there be no order as to that deficiency to the intent that he will bear his own costs out of the estate that had otherwise been distributed to him.

3. Order that there be no order as to the plaintiff’s costs to the intent that she bear her own costs of the proceedings.

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Endnotes

Decision last updated: 02 June 2025