Whitington v Whitington (No 2)

Whitington v Whitington (No 2) involved a dispute over the costs incurred in the litigation between the plaintiff, acting as the executor of Philip's estate, and the defendants, Timothy and the Commonwealth Bank, over the administration of the estate and certain claims under the Invalid and Intestacy Provisions Act 1984 (SA) (IFP Act). The court had to determine how the significant costs, which exceeded the value of the estate, should be allocated among the parties. The plaintiff had incurred costs of approximately $125,000, while the defendants had incurred costs of approximately $100,000. The total costs far exceeded the agreed net value of Philip’s estate at the time of his death.

The central legal issues before the court were the allocation of costs incurred by the parties and the appropriateness of the costs in relation to the value of the estate. The court needed to consider the costs associated with the appeal by Timothy against the orders made by the Master and the directions made by the trial judge. Additionally, the court had to determine the costs related to the plaintiff’s defence against the claims made by the defendants and the plaintiff’s own claims under the IFP Act. The court also needed to decide on the costs of mediations held during the proceedings.

The court ruled that Timothy should pay the plaintiff's costs in relation to the appeal and the directions made on 12 April 2006, as Timothy effectively abandoned the claims he raised in his grounds of appeal by not pursuing them at trial. The court also decided that the costs of the mediations should be borne by the parties themselves. Furthermore, the court ordered that the costs of the plaintiff’s IFP Act claims be taxed or agreed on a party/party basis and paid by the estate. The court made no order regarding the costs of the defendants’ own IFP Act claims. Finally, the court ordered that the plaintiff's costs as executor of the estate and incidental to obtaining probate and administering the estate be taxed or agreed as between solicitor and client and paid out of the estate.