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)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Pethers v Pethers (No 2) [2025] NSWSC 561
Case
[2025] NSWSC 561
Decision Date
CaseChat Overview and Summary
In the Family Court of Australia, Pethers v Pethers (No 2) was heard where the primary issue was the determination of costs following a family provision claim. The court had to decide the legal issues surrounding the application of the statutory framework for costs orders in family provision proceedings. Specifically, the court needed to examine the appropriateness of applying the default rules under the Uniform Civil Procedure Rules (UCPR) to family provision cases and the extent to which the court should exercise liberality and discrimination in deciding whether to deviate from these rules.
The court deliberated on the purposive approach to costs orders in family provision proceedings and the relevance of the impecuniosity of the parties. It concluded that while the default rules under UCPR apply to family provision cases, the court must exercise a greater degree of liberality and discrimination. This means that the court retains the flexibility to depart from the default rules based on the specific circumstances of each case. The court also considered the unusual deployment of Calderbank offers by the parties. Despite the unsuccessful applicant not achieving a better outcome than the offer made, the court noted that the successful defendant did not seek indemnity costs despite the offer being more favourable than the final outcome. Ultimately, the court decided that the default rules in UCPR should apply, but with a recognition of the need for judicial discretion in these unique circumstances.
The court's reasoning led to a decision that the costs order should be based on the default rules in UCPR but with a consideration of the parties' financial situations and the nature of the offers made. The final order was that the unsuccessful applicant was to pay the successful defendant's costs of the proceeding, but with a recognition that the court had exercised its discretion in light of the specific circumstances of the case.