Singer v Berghouse

[1993] HCA 35

HIGH COURT OF AUSTRALIA

Gaudron J

BERNICE SINGER v. MAXWELL BERGHOUSE

(1993) 114 ALR 521

12 July 1993

Orders

Application for security for costs dimissed. Costs of the application to be costs in the appeal. Certify for the attendance of counsel.

Decision

GAUDRON J Special leave was granted to Mrs Singer on 30 April 1993 to appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales upholding a decision by Master Windeyer rejecting her application under the Family Provision Act 1982 (N.S.W.) ("the Act") for provision out of the estate of her late husband, Lionel Singer.

2. As events transpired, Mrs Singer received nothing under the will of her late husband which was to the effect that property acquired before their marriage should go to his son and after acquired property should go to Mrs Singer for life and then to the son. Mr and Mrs Singer were married in 1987. Mr Singer died in 1988 and, although he and Mrs Singer had been house hunting in Sydney, no property had then been acquired.

3. Mr and Mrs Singer met and married in New York. After Mr Singer's death, Mrs Singer returned to America and resumed residence in New York. It is in that context that the respondent to the appeal, the executor of Mr Singer's estate, now seeks an order for security for the costs of the appeal to this Court or, in terms of O.70 r.7(1) of the High Court Rules, "for the payment of such costs as may be awarded by the Court to the respondent".

4. Mrs Singer is financially able to meet any order for costs that may be made against her. Equally, she is able to comply with any order for security that may be made. The application is brought because her assets are all in New York and, should she fail to pay, it would be necessary to enforce an order for costs against her by bringing action on the judgment in New York. It is common ground that, although it is not possible to have an Australian judgment automatically registered and enforced in the courts of the United States of America, there is no reason to think that an action on the judgment would be unsuccessful. But, according to the argument on behalf of the executor, the estate should be spared the cost and inconvenience involved should that course prove necessary.

5. In most cases, costs follow the event in the sense that, save in special or extraordinary circumstances, costs are awarded in favour of the successful party and against the unsuccessful one. It may well be that, in the absence of special circumstances and in a case where costs follow the event, the need to bring action in a foreign court to enforce an order for costs will weigh very heavily in favour of an order under O.70 r.7 ((1) See PS. Chellaram and Co. Ltd. v. China Shipping Co. (1991) 65 ALJR 642, at p 643; 102 ALR 321, at p 323.). Even so, decisions under O.70 r.7 involve a discretionary judgment of a very broad kind made by reference to the circumstances of the particular case and not by reference to a rule or rules which direct a decision one way or the other ((2) See King v. Commercial Bank of Australia Ltd. (1920) 28 CLR 289, at pp 292-293; Lucas v. Yorke (1983) 58 ALJR 20, at p 21; 50 ALR 228, at pp 228-229; Dillon v. Baltic Shipping Co. (1991) 65 ALJR 647, at p 649; 102 ALR 482, at p 486; Webster v. Lampard (1993) 67 ALJR 393, at p 393; 112 ALR 174, at p 175.).

6. Family provision cases stand apart from cases in which costs follow the event. Leaving aside cases under the Act which, in s.33, makes special provision in that regard, costs in family provision cases generally depend on the overall justice of the case. 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 ((3) See Dickey, Family Provision After Death, (1992), pp 184-185; as to the position in the United Kingdom, see Ross Martyn, Family Provision: Law and Practice, (1985), pp 77-78.). 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 ((4) Dickey, ibid. Note that it is said by Ross 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".).

7. In the present case, no order for costs was made against Mrs Singer at first instance, notwithstanding that her application was unsuccessful. That course was entirely consistent with s.33 of the Act which, as already indicated, provides expressly for costs of applications under that Act ((5) Section 33 applies to "the costs, charges and expenses of or incidental to proceedings under this Act in relation to the estate".). Section 33(1) confers a discretion to order costs out of the estate or the notional estate of the deceased person except as provided by sub-s.(2) and sub-s.(3). The effect of s.33(2) is that, on an application by a former spouse, a dependant grandchild or a dependant member of the deceased's household, costs are not to be awarded out of the estate unless the application is successful or unless there are "special circumstances which make it just and equitable ... to do so". Mrs Singer was the wife, not the former wife, of the late Lionel Singer and, thus, her application is not governed by s.33(2). Rather, it comes within s.33(3) the effect of which is that costs are not to be ordered out of the estate by reason only that the applicant was the spouse, de facto spouse or child of the deceased or that the application was successful. The effect of s.33, in its application to this case, is that it is by no means certain that, even if unsuccessful, Mrs Singer will be ordered to pay the costs of her appeal to this Court.

8. Having regard to the special nature, so far as costs are concerned, of family provision cases and, in particular, s.33 of the Act, it is my view that the application for security for costs should be dismissed. Costs of this application should be costs in the appeal. It should be certified that this was a matter appropriate for the attendance of counsel.