Wenham v Wenham (No 2) - [2023] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
WENHAM v WENHAM & ORS (No 2)
[2023] SASC 142
Judgment of the Honourable Justice Kimber
SUCCESSION - FAMILY PROVISION - PROCEDURE - ORDERS AND OTHER PROCEDURAL MATTERS - COSTS - OFFER OF COMPROMISE
In these proceedings, the applicant sought further provision out of an estate pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA). The applicant was unsuccessful in his claim. This judgment deals with the question of costs.
The applicant sought an order that his costs should be paid out of the estate on a solicitor client basis.
A formal offer was filed by the third and fourth respondents. They opposed the orders sought by the applicant and sought orders that their costs be paid by the applicant including on an indemnity basis from the date the offer expired on the ground that the applicant’s refusal to accept the offer was imprudent.
Held, per Kimber J:
1.      The applicant did not act unreasonably in bringing the claim.
2.The applicant may not be able to support himself if the orders sought by the third and fourth respondents were made.
3.The application was finely balanced. However, given the formal offer was reasonable, it is not appropriate for the applicant to have all costs paid out of the estate.
4.The Court orders:
4.1.    The costs of Christopher Wenham, Kym Wenham and Rodney Wenham, in their capacities as Executors of the estate, are to be paid by the estate of the deceased on a solicitor client basis and on the footing of an indemnity;
4.2.    The costs of the applicant and the third and fourth respondents incidental to the application from 30 June 2022 to 16 January 2023, are to be paid by the estate of the deceased on the standard costs basis, to be taxed or agreed;
4.3.    The costs of the third and fourth respondents incidental to the application from 17 January 2023, are to be paid by the applicant on the standard costs basis, to be agreed or taxed;
4.4.    There be no order as to the costs of the applicant from 17 January 2023; and
4.5.    The Executors of the estate are directed that any cost order made against the applicant is to be set off against any entitlement the applicant has in the estate of the deceased.

Inheritance (Family Provision) Act 1972 (SA) s 9; Uniform Civil Rules 2020 (SA) r 132.10, referred to.
Pizimolos v Pizimolas and Zannis (No 2) [2010] SASC 209; Bowyer v Wood and Ors (2007) 99 SASR 190, applied.

WENHAM v WENHAM & ORS (No 2)
[2023] SASC 142
Civil: Application — costs
KIMBER J:

On 6 June 2023, I delivered judgment in this matter. Bruce Wilton Wenham (the deceased) passed away on 25 September 2021. The deceased was survived by his three adult sons. By his will made on 11 March 2020, the deceased left the residue of his estate to his sons in three equal parts. The…

Grounds of appeal

[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.

Continue reading Wenham v Wenham (No 2)

Details

AGLC: Wenham v Wenham (No 2) [2023] SASC 142
Case: [2023] SASC 142
Decision Date: 9 October 2023

CaseChat Overview and Summary

The case of Wenham v Wenham (No 2) involves the applicant, Christopher Wenham, and the respondents, Kym Wenham and Rodney Wenham, who are beneficiaries of the estate of a deceased person. The applicant brought a claim for further provision under the Inheritance (Family Provision) Act 1972 (SA). The dispute centred around the adequacy of the provision made to the applicant in the deceased's will and the associated costs incurred by the respondents in defending the claim. The case was heard in the Supreme Court of South Australia.

The primary legal issue the court had to address was whether the costs incurred by the respondents in defending the applicant's claim should be paid by the applicant or out of the estate. This issue was considered in the context of Section 9(8) of the Inheritance (Family Provision) Act 1972 (SA), which grants the court discretion in making orders regarding costs, and Rule 132.10 of the Uniform Civil Rules 2020, which outlines the conditions under which a formal offer of compromise must be made and its implications on costs. The court also had to consider whether the applicant's claim was reasonable and whether the offer made by the respondents was genuine and reasonable.

The court found that while the applicant's claim was not successful, it was a 'finely balanced' case. The applicant had acted reasonably in bringing the claim and the offer made by the respondents was reasonable, providing the applicant with additional provision and avoiding further costs. However, the court exercised its discretion under Section 9(8) of the Act and Rule 132.10 of the Uniform Civil Rules 2020, and decided that it would not be appropriate for the applicant to bear all of his costs from the estate. Instead, the court made an order that the costs of the applicant and the respondents incidental to the application from 30 June 2022 to 16 January 2023, are to be paid by the estate of the deceased on the standard costs basis. The costs from 17 January 2023 are to be paid by the applicant on the standard costs basis, but there is no order as to the costs of the applicant from that date. The court also directed that any cost order made against the applicant is to be set off against any entitlement the applicant has in the estate of the deceased.

This decision highlights the court's discretion in making orders regarding costs in family provision matters and the importance of considering the financial implications of such orders on the parties involved. The court balanced the need for a fair outcome for the applicant with the reasonableness of the respondents' costs and the overall financial position of the estate. The court's approach demonstrates a nuanced understanding of the interplay between the statutory provisions, the rules of court, and the equitable considerations inherent in family provision claims.

Orders

Orders of the court

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Background

Background to the litigation

In their capacity as Beneficiaries of the estate, the costs of Kym Wenham and Rodney Wenham in defending the applicant’s claim is a cost incurred as an incident of determining the just entitlements of the Beneficiaries under the will. Kym Wenham and Rodney Wenham were successful. They are entitled to have their costs paid by the applicant, or in the alternative, out of the estate. The formal offer and other background As set out above, the deceased passed away on 25 September 2021. A Grant of Probate was made on 20 January 2022. The applicant made the claim for further provision on 30 June 2022. A private mediation occurred on 22 September 2022. Obviously enough, the mediation did not result in resolution of the claim made by the applicant. Kym Wenham and Rodney Wenham filed a formal offer on 21 December 2022. The applicant was offered an additional amount of $50,000 to be paid from the residue of the estate. Further, the offer also included that the costs of the applicant be paid on the standard cost basis from the estate. The offer made by Kym Wenham and Rodney Wenham expired on 17 January 2023. The trial took place on 23 March 2023. On 5 July 2023, Christopher Wenham filed an affidavit. Among other things, he has set out that his costs agreement is ‘based exclusively on time spent and not the Supreme Court scale’; that at the time of mediation his legal bills, inclusive of counsel fees, were $32,000; that the offer was ‘token’ given the amount of the offer and the term relating to costs. The Act and the Rules Section 9(8) of the Inheritance (Family Provision) Act 1972 (SA) provides: The Court may make such order as to costs of any proceeding under this Act as it considers just. Rule 132.10 of the Uniform Civil Rules 2020 relevantly provides: (1)In this rule—relevant offer means a formal offer in compliance with rule 132.4 that—(a) was filed and served on the offeree at least 21 days before the commencement of the trial or final hearing of the proceeding or such later date as the Court orders on an application made before the expiration of that period;(b) was and remained open for acceptance at least 14 days after service;(c) relates to an entire action and not merely to part of it;(d) involves genuine compromise;(e) contains a term that the respondent to the action is to pay the costs of the applicant on the standard costs basis up to acceptance of the offer or 14 days after service of the offer (whichever is earlier) or that the parties will submit to any order that the Court may make in the exercise of its discretion. …(3)When— (a) a relevant offer is made by a respondent in an action; (b) the offer is not accepted by an applicant; and(c) either—(i)the respondent obtains judgment dismissing the action; or (ii)the applicant obtains judgment that is less favourable to the applicant than the terms of the offer,then—(d) the costs incurred in respect of the action up to 14 days after service of the formal offer are unaffected by the making of the formal offer; and(e) subject to the overriding discretion of the Court, the respondent is entitled to an order against the applicant for the respondent’s costs of the action to which the relevant offer relates thereafter on an indemnity basis.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Christopher Wenham submits that his claim, while unsuccessful, was held to be ‘finely balanced’ and it was not unreasonable for him to refuse the offer. The applicant submits that this is a case in which it is appropriate to depart from general rule. Christopher Wenham directs attention to UCR 132.10(3)(e) and the overriding discretion of the Court. Consideration I do not find the applicant acted unreasonably in bringing his claim. In dismissing the claim of the applicant, as the applicant emphasised, I found the matter was ‘finely balanced’. In the ordinary course, an order that the applicant not have his costs paid out of the estate would be the appropriate order. While I am satisfied the attempt by the applicant to secure greater provision out of the estate was reasonable, it was ultimately found that the applicant had not discharged the onus of establishing that a one third share of the estate was not adequate provision. The offer made on 21 December 2022 was a reasonable one. It would have given Christopher Wenham some further provision and avoided additional costs. In the ordinary course, Christopher Wenham would have a costs order made against him. However, having found that the claim of the applicant for greater provision was ‘finely balanced’ and the limited financial resources of the applicant as set out in my judgment given on 6 June 2023, I am concerned about the capacity of the applicant to support himself in future years if all the orders sought by Kym Wenham and Rodney Wenham are made. As the application was finely balanced and as a relevant consideration is the effect of a costs order upon the financial position of the respondent, I am not satisfied it would be appropriate to make all the orders sought by Kym Wenham and Rodney Wenham. At the same time, given the formal offer was a reasonable one, I am also satisfied that it is not appropriate for Christopher Wenham to have all of his costs paid out of the estate. In the exercise of my discretion, I make the following further orders: 1.The costs of the applicant and the third and fourth respondents incidental to the application from 30 June 2022 to 16 January 2023, are to be paid by the estate of the deceased on the standard costs basis, to be taxed or agreed. 2.The cost of the third and fourth respondents incidental to the application from 17 January 2023, are to be paid by the applicant on the standard costs basis, to be agreed or taxed. 3.There be no order as to the costs of the applicant from 17 January 2023. 4.The Executors of the estate are directed that any cost order made against the applicant is to be set off against any entitlement the applicant has in the estate of the deceased.