1. In a decision published as Mainray Nominees Pty Ltd v Stoate[1]

(a) the plaintiff's claim for its costs of the originating summons against the defendants'; and

(b) the defendants' claim for their costs of the originating summons to be paid from the Talgarno Trust.

1. The specific order sought by the Defendants is that:

The defendants' costs of and incidental to the application be paid from the Trust on an indemnity basis, save and except to the extent that such costs are unreasonable in their amount or unreasonably incurred, to be taxed without application of the scale limits, if not agreed (with notice of the taxation to be provided to the plaintiff).

1. For the reasons which follow, I agree with the position advanced by Mainray and make orders in the terms which it sought. Those orders include the costs of and incidental to the determination, the subject of these reasons.

1. An instructive starting point is the following passage from the decision of EM Heenan J in Tsaknis v Lilburne:[2]

That an applicant executor trustee seeking directions under s 92 of the Trustees Act should have his costs to be taxed paid out of the estate and on an indemnity basis is well‑established by authority. Indeed, that is directed by the Rules of the Supreme Court O 66 r 9(2) unless the applicant trustee has acted unreasonably or, if a trustee or personal representative, has in substance acted for his own benefit rather than for the benefit of the fund. Cases expressing and applying that principle include Re Beddoe; Downes v Cottam [1892] UKLawRpCh 180; [1893] 1 Ch 547, 558; McDonald v Horn [1995] 1 All ER 961; [1995] ICR, 685, 970; and the Macedonian Orthodox Community Church case (supra) [71].

Counsel for Mr David Lilburne submits that his client was a necessary party to be joined on the application for directions and that it was necessary for him to appear before the court on the application - s 92(2) with the result that having appeared and been represented on the application he became bound by the direction given: Re Grose (dec) [1949] SAStRp 1; [1949] SASR 55 [60] (Mayo J). He further submits that, as I have earlier acknowledged, when the court exercises its jurisdiction to give directions pursuant to s 92 the court is engaged in determining what ought to be done in the best interests of the trust estate and not in determining the rights of adversarial parties: Marley v Mutual Security Merchant Bank & Trust Co Ltd (201) (PC). So, by analogy with the position in proceedings taken for due administration of an estate, counsel for Mr David Lilburne submits that the costs of all parties properly and necessarily before the court should be met out of the estate: Elders Trustee & Executor Co Ltd v Eastor [1963] WAR 36 [40] (Hale J). Furthermore, there is authority for the approach that when an application to a court is made by a trustee for directions the costs of the parties other than the executor or trustee are normally ordered to be paid out of the trust estate: McDonald v Horn (970); Re Buckton [1907] UKLawRpCh 98; [1907] 2 Ch 406, 414; Marley v Mutual Security Merchant Bank & Trust Co Ltd (supra) (210); and Campbell v Glasgow [1919] HCA 57; (1919) 27 CLR 31.

Generally speaking, counsel for Mr Tsaknis accepts the proposition that the costs of the beneficiary on an application brought by a trustee for directions, where reasonably and properly incurred, may ordinarily be viewed as necessarily incurred for the benefit of the trust estate and so be ordered to be paid out of the trust estate.

1. In summary, the Defendants' position is that the present case is a routine application of the principle in the last quoted paragraph. Counsel for Mainray accepts the proposition in the last quoted paragraph but says that 'the conclusion (i.e. that costs are paid from trust) always rests upon the correctness of the premise (i.e. that those costs benefitted the trust)'.[3] In this case, the correctness of the premise is inexorably linked to the merits of the Campion Action, so costs should be deferred until those merits have been determined.
2. Counsel for the Defendants briefly refers to seven cases in which it is said that similar orders were made.[4] I have had to analyse them in greater detail than counsel in order to determine the costs issues.
3. The first is the decision in Campbell v Glasgow.[5] That case concerned an application by an executor of a will for judicial directions on the proper construction of the will. It was opposed by the beneficiary who stood to lose from the interpretation in dispute. The Full Court of the Supreme Court of Victoria provided directions, which were not disturbed on appeal. In the High Court, the parties had agreed to the costs of all parties of the appeal being ordered to be paid out of the estate of the testator. Knox CJ and Gavan Duffy J had no objection to an order being made to that effect, without any discussion of the principle.[6] The other members of the court (Isaacs and Rich JJ) agreed, again with no discussion of principle.[7]
4. The second is the decision in Buckton v Buckton.[8] In that case, a potential beneficiary under a will took out a summons asking for a declaration as to his entitlement under the will. The respondents were the trustees of the will. A declaration was made in the terms sought by the plaintiff. The order for costs was that the costs of all parties were to be taxed as between solicitor and client and to come out of the estate. Kekewich J considered the principles relating to costs in this type of application, viewing the case as an appropriate one in which to 'enunciate rules for the guidance for the profession'.[9] The three classes of case identified by his Honour are instructive for present purposes:[10]

In a large proportion of the summonses adjourned into Court for argument the applicants are trustees of a will or settlement who ask the Court to construe the instrument of trust for their guidance, and in order to ascertain the interests of the beneficiaries, or else ask to have some question determined which has arisen in the administration of the trusts. In cases of this character I regard the costs of all parties as necessarily incurred for the benefit of the estate, and direct them to be taxed as between solicitor and client and paid out of the estate. It is, of course, possible that trustees may come to the Court without due cause. A question of construction or of administration may be too clear for argument, or it may be the duty of trustees to inform a claimant that they must administer their trust on the footing that his claim is unfounded, and leave him to take whatever course he thinks fit. But, although I have thought it necessary sometimes to caution timid trustees against making applications which might with propriety be avoided, I act on the principle that trustees are entitled to the fullest possible protection which the Court can give them, and that I must give them credit for not applying to the Court except under advice which, though it may appear to me unsound, must not be readily treated as unwise. I cannot remember any case in which I have refused to deal with the costs of an application by trustees in the manner above mentioned.

There is a second class of cases differing in form, but not in substance, from the first. In these cases it is admitted on all hands, or it is apparent from the proceedings, that although the application is made, not by trustees (who are respondents), but by some of the beneficiaries, yet it is made by reason of some difficulty of construction, or administration, which would have justified an application by the trustees, and it is not made by them only because, for some reason or other, a different course has been deemed more convenient. To cases of this class I extend the operation of the same rule as is observed in cases of the first class. The application is necessary for the administration of the trust, and the costs of all parties are necessarily incurred for the benefit of the estate regarded as a whole.

There is yet a third class of cases differing in form and substance from the first, and in substance, though not in form, from the second. In this class the application is made by a beneficiary who makes a claim adverse to other beneficiaries, and really takes advantage of the convenient procedure by originating summons to get a question determined which, but for this procedure, would be the subject of an action commenced by writ, and would strictly fall within the description of litigation. It is often difficult to discriminate between cases of the second and third classes, but when once convinced that I am determining rights between adverse litigants I apply the rule which ought, I think, to be rigidly enforced in adverse litigation, and order the unsuccessful party to pay the costs. Whether he ought to be ordered to pay the costs of the trustees, who are, of course, respondents, or not, is sometimes open to question, but with this possible exception the unsuccessful party bears the costs of all whom he has brought before the Court.

1. Kekewich J was initially disposed to view the case before him as being in the third class, observing: 'This looks much like hostile litigation'.[11] However, on analysis, his Honour viewed it as being in the second category, concluding: [12]

Thus regarded the case does not strictly fall within either of the classes above mentioned, and yet it may fairly be treated as being of the character of the second class. The trustees did not ask for, because they did not require, any direction at the present time; but if the applicant is right, as I have held him to be, he can at any moment call on them to deal with the property according to his directions as absolute owner, and thus the rights of the parties and the duties of the trustees have been finally settled. It is in form adverse litigation, but in substance it is amicable procedure for determining speedily and inexpensively a question the solution of which must sooner or later be found for the benefit of all concerned, including the trustees.

Under these circumstances I hold that the costs of all parties, to be taxed as between solicitor and client, must come out of the estate. There is no money out of which they can be paid, but I suppose it will be sufficient to declare the right and to leave the ways and means to be settled by the parties.

1. The third is the decision in Re Grose.[13] That case was an application by the trustee of the will of a deceased estate for directions under the South Australian equivalent to TA s 92. The beneficiaries with the 'interests in conflict' based on the interpretation in issue were separately represented from the trustee/applicant.[14] As an aside, on the approach taken by Mayo J in Grose, the Defendants in the present Application would not have been allowed to have submitted the factual material which they did:[15]

Proceedings initiated by originating summons are not the medium for disposing of an issue of fact. But it is contemplated by [the equivalent to TA s 92] that the difficulty or doubt may be related to the uncertainty of the trustees as to the truth of a fact that may influence their conduct. But the court is only concerned with the facts submitted by the trustees. It is not proper for respondents to raise an issue as to some circumstance beyond the scope of the submission.

... It seems to me trustees are entitled ... to obtain protection on the facts they submit. That right will not be defeated by the desire of other parties to introduce further facts.

There is an aspect of importance that results from this view of the section, if I am right. The protection given by the section will only be available when all material and relevant facts are substantially as submitted upon the application. If there are omitted circumstances that are material and relevant, which, if proved, would have altered the advice or direction given, the order may be no defence to the trustees. Trustees are protected even against interested persons not represented, provided the facts submitted are true and complete. Parties represented upon the application will be bound by the judicial advice and direction, but with them, too, the order may not conclude the matter, if material facts are omitted from the case presented by the trustees as against parties not represented (if any).

Mayo J gave the advice sought. Without regard to any statement of principle, his Honour ordered that the costs of all parties as between solicitor and client be taxed and paid out of the fund.

1. The fourth is the decision in Marley v Mutual Security Merchant Bank.[16] That case concerned an application by the administrator of the estate of the late Bob Marley. The administrator was a professional trustee company. The administrator sought a direction from the Supreme Court of Jamacia as to whether it was its duty to sell the musical rights of the deceased or, so far as necessary, authority to retain them unsold. Initially, the court said it was the duty of the administrator to sell the rights. The administrator then entered into a sale contract, expressly conditional upon the approval of the court. The administrator commenced proceedings seeking this advice, joining the beneficiaries (Mr Marley's widow and children) as respondents. Mr Marley's widow and adult children opposed the sale. At first instance, the sale contract was authorised. The Jamaican Court of Appeal dismissed the appeal, though adding some modifications that would increase the value of the consideration. The Privy Council allowed the appeal, remitted the matter back to the Supreme Court of Jamacia, and, relevantly for present purposes, ordered the costs of all parties to be paid out of the estate of the deceased. There was no discussion of the principles relating to costs, but the concluding comments of the court are instructive:[17]

In these circumstances, their Lordships have been compelled to the conclusion that there is no acceptable alternative to tendering to Her Majesty their advice that the appeal should be allowed and that the matter be remitted to the Supreme Court of Jamaica for further consideration, on the basis of accurate and up-to-date figures, of expert advice and appraisals so far as necessary, and of sufficient evidence to demonstrate that the potential market for these very valuable assets has been fully and effectively explored. It should be stressed once again that there is no question whatever of the good faith of the respondent or its advisers and the appellants have not suggested that the costs of all parties of the proceedings before the Board and in the courts below should be met otherwise than out of the estate. Their Lordships so order.

1. The fifth is the decision in Elders Trustee & Executor Co Ltd v Eastoe.[18] That case was again an application by the trustee of a deceased estate for directions regarding the proper manner in which to distribute the estate. The defendants were the affected beneficiaries, represented in groups by three different counsel. Hale J gave the advice requested.[19] His Honour ordered that the costs of all parties be taxed and paid out of the estate.[20] His Honour's statement of the relevant principles is instructive for present purposes: [21]

An order for costs is essentially a matter of discretion, and it would be both impossible and in any event undesirable for the courts to have attempted to state any absolute rules on the subject, but, in my opinion, the proper approach appears to be to inquire whether the claim made required to be decided for the due administration of the estate, and if so whether the claim was a reasonable one in the sense that on the information available at any given moment it would appear to competent counsel to be fairly arguable and not merely a speculative chance. If these conditions are fulfilled then the costs of all parties properly and necessarily before the Court should be met out of the· estate, and it is irrelevant who actually initiates the proceedings. This general proposition seems to be supported by such cases as Re Buckton, [1907] UKLawRpCh 98; [1907] 2 Ch. 406; Re Clarke (1907), 97 L.T. 707, and Re Preston's Estate, [1951] Ch. 878; [1951] 2 All E.R. 421. A claim against, and not under the will, is outside the principle, and is normally to be treated as litigation in which costs should follow the event; Re Halston; Ewen v. Halston, [1912] UKLawRpCh 8; [1912] 1 Ch. 435; [1911-13] All E.R. Rep.

In the present case the questions argued before me ... needed to be determined before the executor could distribute the estate in its hands, and I do not regard the issues raised as speculative or as at any stage obviously futile. It follows that, in my opinion, the costs of all parties should be taxed and paid out of the estate.

Hale J essentially took a similar approach to that of Kekewich J in Buckton (which decision he cited with approval), especially with the reference in the last sentence of the first paragraph of this quote.

1. The sixth is the decision in Tsaknis. The applications heard by EM Heenan J all concerned the administration of a deceased estate. A grant of probate of the relevant will was made by this court in common form to Mr Tsaknis, who was one of the two executors appointed under the will. Leave was reserved for the other executor, Mr Lilburne, to apply for probate. Mr Lilburne subsequently applied for a double grant of probate so as to be appointed an executor. Mr Tsaknis sought orders that he was justified in opposing the application brought by Mr Lilburne, and seeking to revoke the leave given for him to apply for probate. His Honour gave the advice sought.[22] On the advice summons, his Honour ordered that the costs of Mr Tsaknis and of each of the beneficiaries being the first (Mr Lilburne), second and third defendants, including all reserved costs, if any, be taxed on a solicitor‑client basis and be paid out of the estate of the deceased.[23]
2. I have already quoted the references relied on by counsel before EM Heenan J ([7]). His Honour's detailed analysis of the factual issues is of assistance in determining the present Application:[24]

However, in the present case the counsel for Mr Tsaknis submits that this application under s 92, and the orders made are not of a nature that will lead to, and have not led to, the determination of any substantive rights but, rather, are a part of the necessary response by the existing executor and trustee to what is, in effect, a hostile claim by Mr David Lilburne to obtain a grant of double probate - the effect of which would be to jeopardise the administration of the estate. Because of that, counsel for the applicant has submitted that situation is more analogous to that of an adverse claim by beneficiary against a trustee in which case costs should ordinarily follow the event: Re Buckton (supra) (415); McDonald v Horn (supra) (970 - 971). The applicant's submissions are to the effect that the first defendant's conduct should be regarded as being directed towards the advancement of his private interests rather than the interests of the estate as a whole and its due administration and the events which have led to Mr David Lilburne applying for double probate arise directly from: his failure to assist in the due administration of the estate; to disclose the existence of estate assets; to provide information about the state of indebtedness of himself and his wife to Rampard; and his dissatisfaction at the refusal of the trustee to respond to invitations to participate in what have been characterised as tax evasion arrangements - all of which reflect adversely upon his suitability to be a joint executor and trustee.

Accordingly, the applicant submits that Mr David Lilburne's claim for costs should be adjourned and the question of those costs reserved until further order and, preferably, until after there has been a final determination of the cause over whether or not Mr David Lilburne should receive a double grant. In so far as Mr David Lilburne's submissions advance the proposition that he was, as a beneficiary, a proper party to be joined and be heard on the application for directions under s 92 of the Trustees Act, counsel for Mr Tsaknis does not in any way contest those propositions but submits that they do not in any way conclude the question of his entitlement to costs. The reason why Mr Tsaknis brought the application for directions under s 92 in the first place was, so it was submitted and cannot be doubted, because Mr David Lilburne brought his application for a double grant in circumstances which the trustee considered himself obliged to oppose the application and seek directions of the court enabling him to do so. In short, the submissions on behalf of Mr Tsaknis advance the proposition that the whole question of costs for Mr David Lilburne should be seen as depending upon whether or not he is now entitled to a grant of double probate because, if not, there would have been no necessity for the application for directions under s 92 at all.

I acknowledge that there is some plausibility in these submissions on behalf of the existing executor and trustee but, inevitably, they are infused by the sentiment that, because of the alleged circumstances, Mr David Lilburne should not have applied at all for a grant of double probate of his father's will. No findings in relation to that matter have yet been made and a cause to determine the allegations advancing that contention remains to be heard so at this point there can be no acceptance that those allegations have been, or will be, established.

That leaves the question of whether or not the question of Mr David Lilburne's costs should be postponed until after the eventual disposition of the cause which I have ordered to be tried. However, in applying for a grant of double probate as he has done Mr David Lilburne has done nothing more than he was expressly granted leave to do by this court in the grant of probate in common form made on 5 October 2006. If, in exercising that undoubted right Mr David Lilburne has been met by objections that, because of his alleged conduct, he is no longer suitable to be so appointed, the question of his suitability and entitlement for appointment will be determined in proceedings designed for that purpose - as I have ordered. When those proceedings are determined issues of costs will, no doubt, arise. They will need to be decided in the exercise of the discretion of the judge determining the cause according to established principles and in the light of the outcome of that cause. At this stage, however, Mr David Lilburne is exercising a right to apply for double probate, granted to him by the court, and whether his motives be good or ill, and whether the application be eventually successful or not, the mere initiation of proceedings pursuant to that right has led to the need for Mr Tsaknis to seek directions of the court. That application for directions has led, inevitably and necessarily, to Mr David Lilburne being joined, appearing and being heard on the application.

Accordingly, I am satisfied that the ordinary principles apply and that he should have his costs on a solicitor‑client basis taxed and paid out of the estate notwithstanding that the determination of the costs of the eventual determination of the cause ordered to be tried may involve other considerations. It is not to be forgotten that he was named by his father in the will as a co‑executor and trustee and has been granted leave to apply when probate was first granted so that there is, therefore, no ground for suggesting that his application for a double grant is baseless or without any prima facie entitlement. That it has given rise to the contentious issues which I have examined means that significant and important questions have arisen in the course of the administration of the estate necessitating the application made by the existing trustee under s 92 and in respect of which, at least at this stage, there is no reason to depart from the conventional principles that all beneficiaries properly and necessarily appearing on the application for directions should have their costs out of the estate.

• 18 The seventh is the decision in Blatchford v Laine.[25] That case was an application by an administrator of a deceased estate pursuant to TA s 92 seeking advice as to whether he was justified in defending a claim affecting trust assets by the son of the deceased, referred to by his first name Tapio. Tapio appeared by counsel to oppose the direction. Certain other beneficiaries of the deceased's estate also appeared but supported the position of the administrator. Vaughan J gave the advice that the administrator was justified in defending the claim and, at that stage, investigating counterclaim, with leave to renew his application for leave to bring it. His Honour made an order that the costs of all parties, including Tapio, be paid from the estate.[26] His Honour's comments regarding Tapio are relevant for present purposes:[27]

It would be appropriate to order that Tapio pay the costs of the other beneficiaries if Tapio's opposition to Mr Blatchford's application had been unreasonable or calculated solely to advance his personal interests. I do not consider that to be the case. The opposition based on Tapio's contention that Mr Blatchford should take a neutral position as action CIV 1309 was hostile litigation between beneficiaries did not raise an idle point. It raised a question of what ought to be done in the best interests of the deceased estate. As to the defence of action CIV 1309 of 2016, counsel for Tapio readily accepted, against Tapio's personal interests, that the defence was arguable. And on the 'conditional counterclaim' I have effectively accepted Tapio's contention that the direction sought should not be made as the intended counterclaim is not yet sufficiently developed.

Tapio was joined as a necessary party to the directions application. He acted as contradictor raising matters that were proper and reasonable for consideration by the court. In that sense the costs were reasonably and properly incurred. The costs were also necessarily incurred for the benefit of the deceased estate. It is appropriate, in these circumstances, that Tapio's costs are to be paid out of the estate on a solicitor and client basis.

1. Based on these seven authorities, counsel for the Defendants submits that there is nothing in the facts of the present matter, or the Defendants conduct in the proceedings, 'that comes even close to providing a reason why the Court should not exercise its discretion in this way'. To the contrary:[28]

(a) the Defendants were the obvious contradictors to the Application;

(b) the basis upon which the Defendants opposed the Application was reasonable; and

(c) the Defendants' conduct of their opposition to the Application was reasonable (including by agreeing to the compromised position ultimately reached).

1. Counsel for Mainray added three further cases into the analysis. The first is the decision in Myra Pty Ltd v Thompson.[29] In that case, the plaintiff sought and obtained an order pursuant to the Transfer of Land Act 1893 (WA) s 138C(2) that a caveat it held over certain land be extended until further order. By later order, the caveat was, in effect, replaced by an injunction restraining the defendant from disposing of or dealing with the net proceeds of the sale of the land. Le Miere J dealt with the issue of the plaintiff's costs in a separate decision, essentially deciding that the costs should be costs in the substantive proceedings.[30] This decision is relied on by counsel for Mainray as to its treatment of proceedings ancillary to the main proceedings as being interlocutory to the main proceeding, and thus properly determined based on the merits of the proceedings. In this regard, his Honour observed:[31]

As the general rule that a successful party should have its costs is directed to a consideration of the litigation as a whole, or at least in respect of final orders, the general rule does not necessarily apply to every interlocutory step in the principal proceedings. As the court's primary aim is to reflect the justice of the situation in any costs order, the court is often unable at an interlocutory step in proceedings to determine who in justice should bear the costs of that step.

1. Counsel for Mainray invited the court to conclude that the court's primary aim is to reflect the 'justice of the situation' in its costs order, but, in the present case, it cannot say where that justice lies until the substantive proceedings have been determined on their merits.
2. The second was the decision in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand[32] which I considered in the Primary Decision (see [30], [78], [108]). In that case, no order was made for the respondents to the advice proceedings to be paid their costs out of the assets of the trust.[33]
3. The third was the decision in Re Mary Donald Nominees Pty Ltd as trustee for The D J MacCormick Family Trust; ex parte Mary Donald Nominees Pty Ltd as trustee for the D J MacCormick Family Trust [No 2].[34] I again considered this decision in some detail in the Primary Decision ([80] ‑ [82], [102], [110]), which I do not need to repeat. It will be recalled that Solomon J made orders that the trustee was justified in defending the substantive proceedings, but that the issue of the trustee's costs were to be determined by the trial judge in the substantive proceedings. His Honour made an order that the trustee's costs be paid from the assets of the trust but made no order as to the costs of the defendants.[35] There is no discussion of the relevant principles.
4. As to the present case, in my view the three classes referred to by Kekewich J in Buckton remain a useful guide to the exercise of the discretion as to costs, but no more. The discretion to order costs in Supreme Court Act 1935 (WA) s 37 is broad and wide.[36] It is also unconfined in the sense that it contains 'no positive indication of the considerations upon which the court is to determine by whom and to what extent costs are to be paid'.[37] So in considering the decision in Buckton, I am conscious not to fall into the error of allowing it to fetter my decision, as opposed to merely informing it.[38]
5. The usual rule for the first class in Buckton is that the costs of a beneficiary on an application for directions in relation to the administration of a deceased estate, where reasonably and properly incurred, may ordinarily be viewed as necessarily incurred for the benefit of the trust estate and so be ordered to be paid out of the trust estate. The decisions in Campbell, Grose, Marley and Eastoe may be regarded as routine applications of the usual rule to the first class (hence in the first three decisions, there was no need for a discussion of the principles).
6. Buckton was a borderline decision between the second and third classes, ultimately falling into the second class. Again, it was in relation to the administration of a deceased estate. The key factor was that while the litigation was 'in form adverse', but 'in substance it [was] amicable procedure for determining speedily and inexpensively a question the solution of which must sooner or later be found for the benefit of all concerned, including the trustees'.[39] This is the corollary of the observation of Hale J in Eastoe that a 'claim against, and not under the will, is outside the principle, and is normally to be treated as litigation in which costs should follow the event'.[40] The claim in Buckton was under, not against, the will.
7. The decision in Tsaknis was also an application for directions in relation to the administration of a deceased estate. It can be regarded as a borderline decision between the first and third classes, evidenced by the passages quoted at [17]. The key factor on which Le Miere J placed weight on was that Mr Lilburne had specifically been granted liberty to apply for grant of probate. It was the 'mere initiation' of this application which led to Mr Tsaknis to seek the directions of the court and 'inevitably and, necessarily to Mr Lilburne being joined, appearing and being heard on the application'.[41]
8. Again, Blatchford, was an application for directions in relation to the administration of a deceased estate. Like Tsaknis it can be regarded as a borderline case between the first and third classes. Le Miere J characterised the application as raising a question as to what ought to be done in the best interests of the deceased estate (see [18]). Hence, all defendants received their costs.
9. In the present case, there was no difficulty regarding the construction of the instrument creating the trust (Campbell, Grose) or its administration (Elders, Marley), a characteristic of the first two classes identified in Buckton.
10. Rather, in the present case, the Defendants commenced the Campion Action, in effect compelling Mainray to seek judicial advice as to whether it was justified in defending it. The Defendants did not do so pursuant to any leave or reservation by the court, as was significant in Tsaknis.
11. More importantly, the present case does not concern the administration of a deceased estate. This, in my view, is significant. The principal duties of an executor or administrator of a deceased estate are to get in the assets of the deceased, to pay the debts of the deceased, the distribute the assets of the deceased in accordance with the will or regime in the Administration Act 1903 (WA) (AA) and produce accounts.[42] The duties are narrow and focussed towards a single outcome, 'fidelity to the terms of the will' (or relevant provisions of the AA).[43] Whereas where the trust is running a business or a charitable organization, each with an ongoing existence, the duties are both wider and more complex. In particular, in the former the trustees have to balance the sustainable continuation of the business with the distribution of the fruits of the business from time to time to the beneficiaries of the trust.
12. I cannot readily characterise the actions of the Defendants in (at least initially[44]) opposing Mainray being given the advice sought as seeking a determination as to what is in the best interests of the Trust. Rather, in my view, the Defendants sought to resist Mainray obtaining the advice sought as part of wider 'hostile' or 'adverse' litigation, a characteristic closer to the third class in Buckton. Their opposition was, both in form and substance, adverse litigation in which the Defendants were seeking a forensic and tactical advantage in the Campion Action. This was to make it more difficult for Mainray and David to fund the defence of the Campion Action as they would have to do so without immediate recourse to the funds of the Trust. In making that observation, I do not for a moment suggest that the Defendants were not entitled to do so, and observe that they have conducted themselves reasonably and properly in the Application. Nonetheless, the Defendants were primarily acting for their own interests rather than for the benefit of the Trust.
13. So characterised, the present case is very similar to MacCormick (a trust operating a business) and closer to Macedonian (a charitable purpose trust for a religious organisation). In each of these cases, there was no order as to the cost of the party who opposed the judicial advice being sought.
14. Although the present case has some of the characteristics of the third class in Buckton, there are differences. Where the judicial advice sought does not determine substantive rights, it is difficult to see a basis for requiring the opposing party to pay the costs of the trustee as foreshadowed in the third class in Buckton.[45] This is because the trustee would have incurred the costs in any event, regardless of whether or not the directions were opposed, as it required the judicial advice (though arguably in a case like the present one, those costs were more than would have been the case had the advice been unopposed). Hence, in MacCormick and Macedonian no orders for costs were made. This outcome also reflects the fact that beneficiaries who could be affected by judicial advice are not 'strictly speaking' parties, even though they are permitted to be heard and allowed to participate in the proceeding to some extent.[46]
15. The second basis on which counsel for Mainray submits that the costs should be reserved is that any enforceable order in favour of the Defendants against the Trust fund risks a 'collateral challenge' of the sort that this Application (and the form of the judicial advice ultimately given) was designed to avoid. The point is made that the present case in not one in which an estate is being liquidated, either in whole or in part, as would usually be the case with a deceased estate. Rather, the Trust has few if any excess liquid assets year-to-year. Its only property with any real value is its shareholding the APCC. It would neither be appropriate nor realistic to sell this asset to satisfy a costs order.
16. Counsel submits that the costs order would need to be satisfied out of the income of the Trust. The problem is that the effect of the judicial advice given is that the Trust needs to find nearly $600,000 to pay out the unpaid present entitlements, ultimately to David, in order to fund the defence of the Campion Action. It is suggested that that this would lead to Mainray having to choose between, in effect, paying the Defendant's costs in this action and paying the costs of defending the Campion Action. I disagree. Mainray would have to prioritise the payment of the Defendants' costs in this action as this would be pursuant to a court order requiring payment. As there is a clear priority, Mainray would not be placed at risk of making a decision which could be the subject of attack along the lines of the allegations in the Campion Action.
17. Be that as is may, the point remains that an order for the immediate payment of costs to the Defendants comes out of the same pool of income as any payment of the loan the subject of the unpaid present entitlements. In this sense, an order for the immediate payment of costs has the potential to undermine the intent of the orders made in the Primary Decision. However, I am not persuaded that Mainray is unable to pay both amounts. The balance sheet of the Trust is strong, with the clear potential to increase its debt funding at least in the short term. So this factor becomes neutral to the costs analysis.
18. In my assessment, the two key consideration in the exercise of the discretion as to costs are:

(a) the Application was not an application for directions in relation to the administration of a deceased estate, in particular one which resolved a substantive issue; and

(b) that the Defendants were primarily acting for their own interests rather than for the benefit of the Trust.

1. These findings mean that the issue of whether the Defendants are entitled to their costs of the Application is inexorably linked to the merits of the Campion Action, and should be determined once the merits of their claim is known. The costs order sought by Mainray is one which, in my view, achieves what is fair and just between the parties according to the circumstances of this particular case at this particular time.[47]
2. Orders will be made in the terms proposed by Mainray.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Mainray Nominees Pty Ltd v Stoate [2025] WASC 145.

[2] Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 (Tsaknis) [82] - [84].

[3] Mainray's Submissions filed 2 May 2025, par 3.

[4] Defendants' Submissions filed 28 April 2025, pars 3 - 5.

[5] Campbell v Glasgow [1919] HCA 57; (1919) 27 CLR 31 (Campbell).

[6] Campbell (47) (Know CJ and Gavan Duffy J).

[7] Campbell (59) (Isaacs J), (59) (Rich J).

[8] Buckton v Buckton [1907] UKLawRpCh 98; [1907] 2 Ch 406 (Buckton).

[13] Re Grose [1949] SAStRp 1; (1949) SASR 55 (Grose).

[16] Marley v Mutual Security Merchant Bank [1990] UKPC 44; (1991) 3 All ER 198 (Marley).

[18] Elders Trustee & Executor Co Ltd v Eastoe [1963] WAR 36 (Eastoe).

[25] Blatchford v Laine [2018] WASC 207 (Blatchford).

[28] Defendants' Submissions filed 28 April 2025, par 6.

[29] Myra Pty Ltd v Thompson [2011] WASC 230 (S) (Myra).

[32] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 (Macedonian Church).

[33] Macedonian Church [200]. See generally: Application of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247; Application of Macedonian Orthodox Community Church St Petka Incorporated (No 4) [2007] NSWSC 254.

[34] Re Mary Donal Nominees Pty Ltd as trustee for the D J MacCormick Family Trust; ex parte Mary Donald Nominees Pty Ltd as trustee for the DJ MacCormick Family Trust [No 2] [2024] WASC 284 (MacCormick).

[35] Something only apparent from the final orders made, and not the reported decision, but which I had provided to the parties in the course of these proceedings to assist with drafting.

[36] Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96 [48] (judgment of the court); Hiddlestone Electrics Pty Ltd v Civic Legal Pty Ltd [2025] WASC 172 [39] (Russell M) (Hiddlestone).

[37] Hughes v St Barbara Ltd [2011] WASCA 234 (S) [5] (reasons of the court); Hiddlestone [39].

[38] Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 [24] (Kiefel CJ, Bell, Gageler, Keane, and Nettle JJ); Kalx Capital Securities Pty Ltd v Richardson 1 Pty Ltd [No 2] [2021] WASC 302 (S) [8] (Allanson J).

[39] Buckton [416] quoted in context at [12].

[41] Tsaknis [88] quoted in context at [17].

[42] Wright v Lemon [2024] WASCA 19 [415] (Buss P with whom Hall J agreed) (Wright); Porteous v Rinehart [1998] WASC 270; 19 WAR 495, 501 (White J).

[44] Defendants Submissions filed 12 March 2025, par 1.

[45] As occurred in In re Halston [1912] UKLawRpCh 8; [1912] 1 Ch 435, 439 (Eve J).

[46] Macedonian [65] - [66]; Blatchford [53].

[47] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 558 (Dawson J); [1990] HCA 59; 97 ALR 45 65 ALJR 151; Manton Enterprises Pty Ltd as trustee for GPK No 2 Trust v Lt Market St Pty Ltd [2021] WASC 4 (S) [7] (Strk AM).