Saunders v The Public Trustee
[2015] WASCA 203 (S)
•20 NOVEMBER 2015
SAUNDERS -v- THE PUBLIC TRUSTEE [2015] WASCA 203 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 203 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:16/2014 | DETERMINED ON THE PAPERS | |
| Coram: | BUSS JA BEECH J MITCHELL J | 20/11/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appellant to pay the first and second respondents' costs of the appeal | ||
| B | |||
| PDF Version |
| Parties: | VALERIE SAUNDERS THE PUBLIC TRUSTEE DAVID HOFFMAN JUDITH MARGARET HOFFMAN |
Catchwords: | Costs Whether appellant should pay the respondents' costs Costs in an unsuccessful appeal from grant of probate |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 r 1(1) |
Case References: | Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Prichard v Prichard [2015] WASC 170 (S) Re Green (decd); Lloyd v Green (1969) WAR 67 Roebuck v Smoje [2001] WASC 95 The State of Western Australia v Collard [2015] WASCA 86 Veall v Veall (No 2) [2015] VSCA 122 Vincent v Close [2014] WASC 5 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SAUNDERS -v- THE PUBLIC TRUSTEE [2015] WASCA 203 (S) CORAM : BUSS JA
- BEECH J
MITCHELL J
- Appellant
AND
THE PUBLIC TRUSTEE
First Respondent
DAVID HOFFMAN
Second Respondent
JUDITH MARGARET HOFFMAN
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : EM HEENAN J
Citation : THE PUBLIC TRUSTEE -v- ROYAL PERTH HOSPITAL MEDICAL RESEARCH FOUNDATION INC [2014] WASC 17
File No : CIV 1154 of 2010
Catchwords:
Costs - Whether appellant should pay the respondents' costs - Costs in an unsuccessful appeal from grant of probate
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 1(1)
Result:
Appellant to pay the first and second respondents' costs of the appeal
Category: B
Representation:
Counsel:
Appellant : In person
First Respondent : Ms C F Holyoak-Roberts
Second Respondent : Mr R J Nash
Third Respondent : In person
Solicitors:
Appellant : In person
First Respondent : Public Trustee (WA)
Second Respondent : Public Trustee (WA)
Third Respondent : In person
Case(s) referred to in judgment(s):
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Prichard v Prichard [2015] WASC 170 (S)
Re Green (decd); Lloyd v Green (1969) WAR 67
Roebuck v Smoje [2001] WASC 95
The State of Western Australia v Collard [2015] WASCA 86
Veall v Veall (No 2) [2015] VSCA 122
Vincent v Close [2014] WASC 5 (S)
1 REASONS OF THE COURT: On 6 October 2015, this court dismissed the appellant's appeal from orders granting probate of the will of Alexa Hoffman to the first respondent. At that time, orders were made for the parties to file minutes of proposed costs orders, and associated affidavits and submissions, and for the question of costs to be determined on the papers.
2 The first respondent seeks an order that the appellant pay his costs of the appeal to be taxed. The second respondent seeks an order that his costs be paid by both the appellant and the third respondent. In the appeal, the third respondent generally supported the appellant's position that the deceased lacked testamentary capacity at the relevant time.
3 We are not satisfied that any order for costs should be made against the third respondent. She did not institute the proceeding, and was entitled to make submissions in the appellant's appeal, which affected her interests. While the third respondent did make an application within the appeal, the nature of that application was such that it was unlikely to have significantly increased the costs incurred by the first and second respondents.
4 This is a case where it is appropriate for the court to exercise its discretion in the usual manner by ordering the unsuccessful party to pay the successful parties' costs.1
5 The appellant was wholly unsuccessful in the appeal. Objectively viewed, the grounds of appeal which she advanced had little prospect of success. In our view, the appellant's grounds in this case did not disclose any reasonable basis for overturning the trial judge's decision. That is a powerful consideration favouring the award of costs against the appellant, rather than the deceased's estate.
6 Cases dealing with costs in first instance applications for probate have recognised circumstances which may justify departure from the general rule that the unsuccessful party pay the successful party's costs. Those circumstances include:
1. where the litigation has been brought about through the conduct of the testator; and
2. where the parties have reasonably been led into litigation by a bona fide belief in their case and have, therefore, felt it desirable to enquire into the testamentary disposition of the testator.2
7 In those circumstances, it may be appropriate for the successful party's costs to be paid from the estate.
8 The circumstances described above are not the only circumstances where departure from the usual approach as to costs may be justified. A departure may also be justified where the successful party fails on an issue of significance or the successful party engages in discreditable conduct.3
9 While the discretion to award costs must be exercised judicially, the classes of case in which the judicial discretion may appropriately be exercised to make a costs order which departs from the general approach should not be regarded as closed. In every case it is necessary to have regard to all the circumstances.
10 We note that, in the present case, the trial judge ordered that certain costs be paid from the estate. At trial, no party sought any order for costs against any other party. It may be that, at that stage, the parties opposing the grant of probate were thought to be justified in pursuing an inquiry into the deceased's testamentary capacity at the relevant time.
11 However, once the trial judge made that inquiry and gave detailed reasons for concluding that the deceased possessed testamentary capacity at the relevant time, the position changed. At that point, the appellant had the benefit of a considered ruling from the court. If she sought to impeach that decision by exercising her right to appeal, she ought to bear the risk of doing so.4
12 Considerations of fairness which dictate that the unsuccessful party typically bears liability for the costs of unsuccessful litigation apply in the present case.5 If the first and second respondents' costs were paid from the deceased's estate, the burden of the costs order would effectively fall on the beneficiaries of the deceased's will (including the second respondent). It should not be thought that a party in the position of the appellant can appeal against the grant of probate without facing the prospect of being responsible for the other parties' costs if he or she is unsuccessful. To adopt such an approach would encourage the dissipation of the funds of deceased estates through litigation by unsuccessful parties who feel there is little to lose from challenging a decision which is adverse to them.
13 In the present case, the appellant did not contend that the court should exercise its discretion to order that the estate bear the first and second respondents' costs of the appeal. Rather, the appellant's submissions attacked the merits of the decision to dismiss the appeal, a matter which it is not presently appropriate to consider.
14 The appellant and third respondent also asked that the court defer questions of costs for 120 days to allow for the commencement of a 'new appeal'. The only remaining avenue of appeal is to the High Court of Australia, by grant of special leave to appeal against the order dismissing the appeal to this court. An application for special leave to appeal against this court's order must be filed within 28 days after that order was made, unless the High Court dispenses with compliance with that time limit.6 If an application for special leave to appeal were forthcoming, it would remain open to the applicant, if she thought fit, to seek to stay the enforcement of costs orders pending determination of the application and any subsequent appeal. It would be for the court dealing with a stay application to decide whether a stay should be granted (and these reasons should not be taken as encouraging such an application). However, the prospect that a special leave application might be made does not warrant deferral of our decision as to the costs of the appeal to this court.
15 For these reasons, we would order that the appellant pay the first and second respondents' costs of the appeal to be taxed.
1 Order 66 r 1(1) of the Rules of Supreme Court 1971 (WA).
2Re Green (decd); Lloyd v Green (1969) WAR 67, 83; Vincent v Close [2014] WASC 5 (S) [3] - [5]; Prichard v Prichard [2015] WASC 170 (S) [4] - [5].
3 See Roebuck v Smoje [2001] WASC 95 [39].
4Veall v Veall (No 2) [2015] VSCA 122 [14].
5Oshlack v Richmond River Council[1998] HCA 11; (1998) 193 CLR 72, [67]; The State of Western Australia v Collard [2015] WASCA 86 [25].
6 Rule 41.02 of the High Court Rules 2004(Cth).
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