Young v Knight

[2005] NSWSC 754

CITATION:	Young v Knight [2005] NSWSC 754
HEARING DATE(S):	25/07/2005, 26/07/2005
JUDGMENT DATE :	28 July 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
DECISION:	Paragraphs 57 and 63.

CATCHWORDS:	Family Provision. Application under Family Provision Act by son of deceased who suffers severe disabilities. Estate left to son and daughter equally and comprises a house and no other assets. Son given a life interest over his sister's share. Discussion of costs in these matters and the duty on legal practitioners to settle such matters if at all possible.
PARTIES:	Allan Georg Young v Loretta Knight (Estate of
FILE NUMBER(S):	SC 1678/2004
COUNSEL:	Mr M. Gorrick & Miss L. Goodchild for plaintiff Mr R. Colquhoun for defendant
SOLICITORS:	Legal Aid Commission of New South Wales Walker Smith Solicitors, Forster, NSW

LOWER COURT JURISDICTION:

- 1 -

SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

THURSDAY 28 JULY 2005

1678/04 - ALLAN GEORGE YOUNG v LORETTA KNIGHT - ESTATE OF JOHN FITZWILLIAM FRANCIS YOUNG

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late John Fitzwilliam Francis Young who died on 7 April 1997. He was survived by the plaintiff, his son, and the defendant, his daughter.

The Will of the Deceased

2 The deceased made his will on 18 May 1989 under which he appointed the plaintiff and the defendant his executors and gave them the whole of his estate equally.

Assets in the Estate

3 This consisted of the home of the deceased at 22 Patrick Street, Punchbowl, which was valued in 2004 at $440,000. There was also cash in the estate of $17,737. The cash was used to pay the administration expenses and then distributed between each of the two beneficiaries. They each received $7869.04.

4 The estate realty was transmitted into the names of the parties as joint tenants, which is consistent with them holding it as executors. The transmission application shows their entitlement as executors. If they had taken it as beneficiaries they would have, of course, under s 26 of the Conveyancing Act been tenants in common. In those circumstances it was not submitted that there had been a distribution such as to bring into play the provisions of s 28(5)(c) of the Family Provision Act.

5 One of the matters that has a substantial impact in this case is the question of costs. The defendant’s costs total the sum of $37,000. The plaintiff is legally aided and, accordingly, his costs will vary depending on whether he receives an order for costs. If he receives an order for costs the costs will total $22,814 and if not they will total $16,744.

6 The arrangement between the Legal Aid Commission and the plaintiff is such that if he receives no award of costs his costs will only be recoverable from the property when it is sold. He can thus bring these proceedings free from any concern as to his personal liability for costs if he is unsuccessful. This would not normally be the case with the defendant.

Family History

7 The defendant was born in 1941 and the plaintiff in 1944. The defendant left high school in 1956 and married in 1963. She has had four children, born in 1965, 1966, 1970 and 1972. She then left the family home to establish her own life after her marriage.

8 In the mid 1960s the plaintiff, his late parents and his late brother moved to the property at Punchbowl. By this time, of course, the defendant and her first husband were living at Miranda. The two parties, the brother John Young, moved to New Guinea in the late 1960s. In this period, and in the 1970s, the plaintiff was employed in the insurance industry and was living at home with his parents and paid board to his mother. He helped his parents around the house, carrying out the normal chores.

9 In 1970 the defendant and her first husband moved to Coffs Harbour where they remained until 1975. In 1973 the plaintiff was seriously injured when he was mugged on a train trip and thrown from the train. He suffered head and other bodily injuries and was admitted to hospital and those injuries affected every aspect of his daily functioning and altogether he was in hospital for some two years between 1973 and 1975. He had multiple operations to his head, eyes and hip and had extensive rehabilitation.

10 Between 1975 and 1985 the plaintiff had some minor employment with Harvey Trinder, the insurance company, in a rehabilitation position but continued to live at home with his parents. During this period his mother spent years teaching him how to cook.

11 In the late 1970s the defendant and her husband moved to live in Lismore, and also around about that time the plaintiff’s rehabilitation position finished and he then went onto a disability pension and he receives that to the present day.

12 Between 1980 and 1986 the defendant and her first husband lived in Sydney but they separated in 1986. She met and started to live with her second husband in 1987, and they were married in 1991. In due course they purchased land on the Sunshine Coast for some $50,000, most of the funds for which came from the defendant’s property settlement with her first husband.

13 In 1995 the defendant contracted cancer and she had extensive treatment, including chemotherapy until late 1996. Fortunately she seems to be free of the threats from that disease at the moment.

14 The defendant and her husband, using some money which the defendant’s husband obtained, built a house on their land on the Sunshine Coast and they moved there in December 1996.

15 In the meantime things had not been going well in the deceased’s house. The deceased’s wife started to suffer from dementia between 1997 and 1998 and in that year there was the death not only of the deceased’s wife but also of their son John, who was the only other sibling of the plaintiff and the defendant. The plaintiff was thus left alone in the house with the deceased and obviously did some cooking and other domestic duties.

16 The deceased made his will in May 1989, as I have recounted, and he died on 7 April 1997. Probate was granted on 6 June 1997.

17 Prior to that there had been a discussion with the solicitors as to what would happen to the property. This is set out by the defendant in para 8 of her affidavit and the relevant part is in the following terms:

“In May 1997 Allan and I consulted solicitor Christopher Lee of Christopher Lee & Associates of Hurstville about my late father’s estate. We spoke to Mr Lee. Allan was present when I said to Mr Lee words to the effect: ‘What would happen if one of us wanted to sell the Punchbowl property and the other didn’t?’ Mr Lee said: ‘The property would have to be sold’.

Allan became very agitated and said ‘I’m on a disability support pension. What am I supposed to do?’ Mr Lee said: ‘It doesn’t matter if you are on a pension. The property would have to be sold if the other owner wanted that to happen.’.

I then said words to the effect, ‘We don’t have to do anything now. We can leave it for five years then review things’. Allan said, ‘Okay’.

Rodney was with Allan and I when we spoke to the solicitor.”

18 By September 1997 the solicitor had written to advise that the property had been transferred into the parties’ names and made the distribution to which I have referred. On 7 October 1998 the eighteen month period in which an application could be made expired. In 2002 the defendant and her second husband sold their Sunshine Coast home for $420,000. Because of illness the defendant’s husband ceased work. They moved to Forster where they purchased a home for $335,000. Both at that stage were about to go onto a pension and had made enquiries about what their situation would be.

19 As a result of that, and concern about the fact that the ownership of the house might affect their pension, they went to see the plaintiff. The conversation which ensued included:

“In December 2003 Rodney and I were in Sydney visiting my children. We called over to see Allan at Punchbowl. Allan and I had a conversation to the following effect:

Loretta Knight: ‘We are due to get the aged pension in February 2004, and having a half share of the Punchbowl property will affect what we get. The financial adviser at Centrelink is trying to get the Punchbowl property disregarded so we can both get the full pension. What do you plan to do with your half share of the house?’

Allan Young: ‘Leave it to the RSPCA of course’.

Loretta Knight: ‘Have you got that in your Will?’

Allan Young: ‘I don’t have a Will’.

Loretta Knight: ‘You should contact a Legal Aid office so your wishes can be carried out’.

I looked up Legal Aid in the phone book and wrote out the address and telephone number of the Bankstown office of Legal Aid, and gave it to Allan.

As Rodney and I left Allan said: ‘I hope you have an accident on the way home’.”

20 On 3 February 2004 the plaintiff, after having some advice and assistance from a next door neighbour, took advice from the Legal Aid Commission and the summons was filed on 26 February 2004, some six years out of time.

21 Because the application is out of time it is necessary for the Court to consider s 16 of the Family Provision Act which allows an application to be made notwithstanding it is out of time. There are a number of cases which refer to the principles to be applied in an application for an extension of time. I refer in particular to In Re Guskett (Deceased) [1947] VLR 211 where the following was said:

“It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time.”

22 His Honour Young J in several cases has dealt with the principles governing application to extend time under this Act. In Massie v Laundy (unreported, NSWSC 7 February 1986), he indicated that when looking at “sufficient cause” under s 16(3) of the Act the factors which one looks at include the following:

(a) Is the reason for making a late claim sufficient?
(b) Will the beneficiaries under the will be unacceptably prejudiced if the time were extended?
(c) Has there been any unconscionable conduct on either side which would enter into the equation?

23 Apparently he also accepts a view which was expressed by his Honour Needham J in Fancett v Ware (unreported, NSWSC 3 June 1986) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (unreported, NSWSC 31 March 1988) Powell J when considering the matter at the substantive hearing leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported, NSWSC 8 September 1989).

24 In De Winter v Johnstone, a decision of the Court of Appeal on 23 August 1995 his Honour Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at p 23:

“In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief.”

25 His Honour Sheller J considered that it was only necessary to show that the application was not bound to fail. His Honour Cole J seems to have adopted the parties’ approach of looking at the strength of the plaintiff’s case.

26 The case of De Winter v Johnstone is also useful in that Sheller J commented on the meaning of “unconscionable”. He was dealing with an appeal from Master McLaughlin and he referred to the Master’s comments to the following effect:

“Unconscionable conduct in this context of course relates to such matters as whether the plaintiff has made an informed decision not to make a claim against the estate and has then decided after the limitation period has expired to make such a claim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period.”

27 With regard to the Master’s comments, his Honour observed:

“...with all respect I would not have thought this to have been unconscionable conduct. No doubt it depends on the circumstances. However, the concept of unconscionable conduct is to be directed towards a deliberate holding off designed to lull beneficiaries into false sense of security. There is nothing to suggest anything of that sort in the present case.”

28 In my view there has been no unconscionable conduct. There has been no prejudice if time is extended. There has been no change of position of any party since the death of the deceased. The explanation for the delay is obvious. The plaintiff was never given any advice that he could or should bring an application under the Family Provision Act and the parties agreed to do nothing about selling the house for five years. Clearly the plaintiff relied upon this and was quite ignorant of any of his rights which he may have had to make an application.

29 The matter only came to a head because of the changed financial circumstances of the defendant and her husband. In those circumstances I am satisfied there has been appropriate explanation and time should be extended.

30 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At p 209 it said:

“The first question is, was the provision (if any) made for the applicant ‘inadequate for (his or her) proper maintenance, education and advancement in life’? The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ et cetera were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance et cetera appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a Court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors.”

The Plaintiff’s Situation in Life

31 The plaintiff is sixty-one years of age, single and has no dependants. He has savings of $5,000 and no other assets other than his interest in the estate. He lives on a disability support pension of $435 per fortnight. He is substantially affected by his injuries and is settled into a fairly rigid routine. He described it in this way in his affidavit:

“Every day I take the dog (Pal) for a walk for one hour at 9am and every afternoon I take the dog for a half hour walk at 2.30pm and later at night for ten minutes.

Every day I walk up to Roselands shops. Once a week I buy fruit. Once a week I buy vegetable and once a week I buy meat. I always take a list but invariably I only remember to buy half the things on the list and I have to go back the next day. On the other days I just walk around Roselands and talk to the shopkeepers and some of the customer, they always say ‘Good morning Allan’.”

32 There was evidence from his neighbour, Ms Mills, who has known the family since before the plaintiff’s tragic accident. She obviously plays an important part in his life and monitors him on a daily basis.

33 The evidence of the plaintiff’s present condition was given by two people, Associate Professor Susan Hayes, a clinical psychologist and Head of the Centre for Rehabilitation Sciences at the Department of Medicine at the University of Sydney who examined him in April 2004. His testing revealed overall his K-SNAP Composite Standard Score was 56 (within the error range of 50-67), on a percentile rank of less than one, in the lower extreme of the population.

34 Professor Hayes went on to describe that this means that 99 per cent of the population functions better than Mr Young in terms of cognitive reasoning and the ability to plan and execute those plans. She said he has difficulty with every aspect of his reasoning, including word-finding and word-processing, and also visual, spatial reasoning and processing.

35 She summarises her findings in these terms so far as they affect his remaining in the existing house:

“In summary, Mr Young is a man who suffered a tragic attack in 1973 which effectively destroyed all of his aspirations, both in regard to his career and his personal life.

Despite the complete disruption of his life and the long time spent in rehabilitation, Mr Young appears to have maintained a good-humoured approach to life and to have been a gentle and caring person. According to the history he gave me, he cared for his mother and took over many of the domestic tasks when she became incapable. He then cared for his father, as his father increasingly developed symptoms associated with alcohol abuse. He also took care of the house and maintained it. He indicates that he had every expectation that he would be able to live in the house until he died.

In my opinion, given the severity of his global traumatic brain injury and the attendant impairments on his cognitive skills, memory, physical abilities, and ability to plan and execute those plans, it is very important that Mr Young remain in a familiar environment. On the basis of the clinical interview and the tests administered, it would seem to me to be impossible for Mr Young to even contemplate the process of selling his house, let alone the process of purchasing another property and being able to organise a move, along with organising all of the services such as telephone, water and electricity.

If he were to move to a new environment, he would lose all of the previous learning which enables him to live relatively independently at present. His independent living would be seriously curtailed and it is likely that he would require much more assistance from community services because he would be unable to find his way around his new location, and to be able to use public transport and shop for himself, all skills which took him many, many years to learn.”

36 The plaintiff was also assessed in November 2002 by Dr Stephen Buckley, a consultant physician in rehabilitation medicine. Dr Buckley referred to the need for a stable home environment in his report in these terms:

“In my opinion, as indicated above, Mr Young’s continued capacity to care for himself depends upon the maintenance of a stable home environment, in which his long-established routines are disturbed as little as possible.

Mr Young learned much of the information required to live independently, in his current home and in the local district, prior to his head injury.

Since his head injury, his capacity to learn new information has been greatly limited. He has, however, through such long term established patterns of routine over the last thirty-one years managed to continue to care for himself even though his parents have died.

In my opinion the loss of the stability of his home environment is likely to disturb his independence due to the disruption of routine. It is unlikely that he will be able to continue to shop independently, if he is required to find a new shopping centre, or even a new route to attend the current shopping centre.

He is likely to have difficulty once he has performed his shopping in remembering where he has packed away purchases he has made, and he is likely to have difficulty to return to his capacity to cook adequately. This is because the kitchen will be laid out in a different manner. He is likely to have difficulty in maintaining his cleaning routines because the cleaning requirements will be different.

In my opinion, if he was to move home to a new place of abode, then he would require four hours a day of personal care assistance in order to be able to maintain the level of independence that he has established over the last thirty-one years. I believe that this assistance would be required for many years before it would be likely that Mr Young would re-establish routines and he may never re-establish such routines. He would continue to require the services of a Case Manager in such circumstances.

Further, Mr Young would be at considerable risk if, for example, he was moved from his present home, and then after even a relatively short time, was required to return to it. It is likely that once again, in such circumstances, a dramatic loss of independence would occur as once disturbed, it would be extremely difficult to re-establish the routines that he presently undertakes.

Again, it is very likely that should such an incident occur, then he would require carers in his own home to assist him to re-establish the routine (which may never recur).”

37 Dr Buckley was cross-examined and he did not accept that it would be appropriate for Mr Young to move to a smaller ground floor unit with his dog because of the problems which he outlined in his report. There was no other medical evidence to the contrary to this evidence led on behalf of the plaintiff.

38 It is, of course, necessary to have regard to the situation of others having a claim on the bounty of the testator. There is only one such person, namely, the defendant.

39 The defendant is sixty-four years of age, married and does not have any dependent children. She and her husband live in their home worth $400,000 which is unencumbered. She has a car worth $10,000, furniture, and about $1,000 in the bank between them. She has superannuation of $41,768.51 and her husband has an allocated pension of $440 per month.

40 They only receive a part pension and it totals $353 per week. She estimates their expenses at $440 per week. That cannot cover their expenses and they cannot even give gifts to their grandchildren. They are in dire straits as far as their income is concerned.

41 These problems arose after the defendant had her battle with cancer and her husband had to retire from work due to ill health. They described the problems they faced when they went to try and obtain a pension. They applied in January 2004 and disclosed that they had a half interest in the Punchbowl property. This meant that they exceeded the maximum allowed to qualify for a full pension. Although she made numerous applications to the appropriate people at Centrelink she could not persuade them to exclude her interest in the Punchbowl property as an asset for the purposes of calculating the pension.

42 Since March 2004 they have each received pension payments of a total of $23,090. If they had the full pension they would have got $31,020, and the difference for them has been $7930. The pension is a very small amount of money. It is very difficult to live on it and to not even receive the full pension causes considerable hardship.

43 The plaintiff tried to do some part time work in order to supplement her pension but she has ceased that work for the time being.

44 It is surprising that the Department of Social Security did not in January 2004 disregard her ownership of a one half share in the property. Section 11 of the Social Security Act 1991 provides, inter alia:

“Unrealisable asset

11(12) An asset of a person is an unrealisable asset if:

(a) the person cannot sell or realise the asset; and
(b) the person cannot use the asset as a security for borrowing.

11(13) For the purposes of the application of this Act to a social security pension (other than a pension PP(single)), an asset of a person is also an unrealisable asset if:

(a) the person could not reasonably be expected to sell or realise the asset; and
(b) the person could not reasonably be expected to use the asset as a security for borrowing.

11(14) Without limiting the generality of subsection (12), an asset is an unrealisable asset of a financial hardship farmer if:

(a) the asset is a life insurance policy on the life of the farmer; or
(b) a certificate under subsection 27(1) is in force in respect of the asset.”

45 In the circumstances of this case I would have thought that the Department should have been satisfied under s 11(13)(a) of the Act. However it was not, and as a result the defendant and her husband went to see the plaintiff to discuss the matter and see if there could be some resolution of the problem. There was not, and I do not criticise the plaintiff for this having regard to the problem which he has as a result of his injury. But instead, proceedings were started promptly by the plaintiff.

46 The plaintiff’s claim is that he be given the whole of the house, or alternatively, he be given a life interest over the share held by his sister. No doubt if a life interest were given then the defendant would receive a full pension as she would satisfy the test under s 11(12) of the Social Services Act.

47 The evidence is all one way as far as the best interests of the plaintiff are concerned. He should, if at all possible, remain in the house until he reaches an age when he will have to go into nursing accommodation.

48 The evidence on the progression of his illness is such that once he no longer can care for himself he will have to move into a nursing home rather than self-care accommodation. Nursing homes may require a bond, although evidence of this and the amount is not before me.

49 The defendant is in a difficult situation. Although she may get an increased pension she has to face the prospect of the liability for costs. They have no capital behind them, and apart from the home and a modest amount of superannuation, it is important to realise that the defendant cannot access that superannuation until sometime next year when she turns sixty-five. She thus has no money to pay the costs other than having to sell her house.

50 Plainly I think the defendant should retain an interest in the property and it is only necessary for the plaintiff to have a life interest until such time as he can no longer reside in the house. Fortunately, his costs can wait until he dies but what of the defendant’s costs?

51 On 24 February 1989 his Honour Cohen J in Jackson v Riley dealt with a claim on an estate valued at $25,000. He commented on the failure to compromise the matter in these terms:

“I have had read to me some twelve or so affidavits; six witnesses including the plaintiff were required for cross-examination; of those, three had to come from Brisbane and the other three, as well as the instructing solicitors in the case, have had to come from Lismore. Of these, one of the witnesses was not cross-examined at all and another was asked one question on an aspect the significance of which was minimal. As a result of what could only be said to be a wholehearted defence of the clients’ rights, I am informed that the estimated costs of the proceedings including those of the executor on the trustee basis will exceed $18,000. That is a matter which I can only view with utter horror. Notwithstanding that, the real issues are in a small compass and there is little dispute on the facts. Such dispute as there is goes more to the peripheral issues than those of substance.

In my opinion, the legal profession in both branches has an obligation to reduce the costs of litigation as much as possible when the amounts in dispute are so small. If the parties cannot reach a compromise then it seems to me that by consultation their legal advisers, both solicitors and counsel, should seek to find all means of defining the real issues and confining the evidence in relation to them. Where cross-examination will be unlikely to alter the substance of a witness’s evidence it should be dispensed with. The heavy expense of bringing those witnesses from distant places should be actively avoided...The plaintiff and the principal beneficiary will have to bear the heavy expense of the litigation with little left for them at the end. It is most regrettable and I think it shows up the need for early consultation and early advice to clients as to what at the end they will be facing.”

52 The reason for mentioning the case is this matter is also one where it is apparent there should have been early efforts to settle it. The need for the plaintiff to be able to remain in the house was plainly apparent after Professor Hayes’ report became available to the plaintiff’s advisers in April 2004. By August 2004 the defendant’s financial position was quite plain and obvious from her affidavit. Presumably the plaintiff and the advisers knew there was a problem with her pension.

53 The defendant in cross-examination made it plain that she only wants to receive the pension and to have some finite time for the termination of any life interest over her half share of the home. It seems to me if any active steps had been taken to try and settle the matter it could have settled early in its life.

54 Instead, the matter has proceeded and the costs have built up very substantially to the point where it cannot be settled because of the amount of costs.

55 In these circumstances it is the classic case where both solicitors should have intervened to try and settle it. Importantly where one party is legally aided and is unlikely to be affected by any costs in his lifetime, those representing him are under such an obligation to settle if possible in order not to abuse the position of superiority which the client has obtained by reason of the cost arrangements.

56 No evidence has been placed before me of the attempts to settle the matter in the early stages, although I did raise the question in argument and submissions. My present inclination is to make no order as to costs with the intent that each party should bear their own costs. However, I will hear submissions from any party.

57 The orders I make are as follows:

(1) I order that in addition to the provision in the will for the plaintiff, the plaintiff shall have a life estate over the defendant’s one half share of the house determinable:
(a) if he ceases to reside in the house on a full time basis;
(b) if he fails to pay one half of any premiums of insurance on the house;
(c) if he fails to keep the house in good repair.

58 I will hear if the parties wish to put any more material before me on the question of costs and in particular whether there have been any attempts to settle the matter. I order the exhibits be returned. I stand the matter over to 9.30am on Friday 5 August 2005.

FRIDAY 5 AUGUST 2005

59 HIS HONOUR: In this matter I have heard further argument in respect of costs. It is apparent that there were settlement discussions between the solicitors at an early stage and a number of different options were discussed. Precise details are not before me. However, it is pleasing to note that in fact the solicitors did attempt to settle the matter.

60 Accordingly, the result of these discussions does not assist in the further resolution of the problem.

61 It is also pleasing to note that the plaintiff’s solicitors, the Legal Aid Commission, has indicated to the Court it would not recover costs against the defendant until the sale of the property, which is obviously a responsible response to this piece of litigation.

62 However, an order for costs is still pressed by the plaintiff. I appreciate in this case it is interest litigation but I also feel the defendant was placed in an invidious position where she had no alternative but to defend the matter the alternative being her giving up the litigation and her share in the house. She has retained her entitlement and in the circumstances I will make the order I envisaged on the last occasion.

63 The order I make is that I make no order as to costs with the intent each party bear their own costs. I direct neither party should be entitled to receive their costs out of the estate.

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