Pethers v Pethers (No 2)

Case [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)…

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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.

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