Alexiou v Alexiou

THE COSTS DILEMMA

1. A difficulty with this case is an apprehension that the costs incurred by the plaintiff on a solicitor-client basis of assessment in the conduct of these proceedings are disproportionate to any entitlement he may have to an award for family provision out of the estate of the deceased or be reasonably able to charge against the estate on the "usual order" that the costs of a successful applicant for a family provision order be paid out of the estate on the "ordinary basis" (more or less an equivalent of what was once described as the "party-party basis") of costs assessment.
2. Concern attaching to the costs incurred by the plaintiff vis-a-vis his lawyers is matched, if not exceeded, by concern about the costs incurred by other parties to the proceedings vis-a-vis their lawyers; but the costs incurred by the plaintiff present a special difficulty because they do not sit comfortably with the purpose of an exercise by the Court of the jurisdiction conferred upon it by Chapter 3 of the Succession Act 2006 NSW to make a family provision order.
3. The purpose of a grant of family provision relief under section 59 of the Act, manifested in sections 59(1)(c) and 59(2), is to make provision for the maintenance, education and advancement in life of a plaintiff who has established to the satisfaction of the Court, inter alia, that he or she has been left without adequate provision for his or her proper maintenance, education and advancement in life from the estate of a deceased person on whose bounty he or she has a call.
4. If the costs incurred by a successful plaintiff as a debt owed to his or her legal advisers exceed the sum of an amount of provision made for him or her and an amount recoverable from the estate, or another party, for costs of the proceedings, the purpose of an exercise of the Court's family provision jurisdiction will have been ill served or frustrated entirely.
5. If the Court is aware of a possibility that this might occur how, if at all, is that possibility to be taken into account upon a determination whether a family provision order and ancillary orders for costs should be made?
6. And at what point should that possibility be taken into account bearing in mind the further possibility that the Court's reasoning on questions of costs might be influenced by evidence (conventionally not adduced until after a principal judgment has been published) of offers of compromise exchanged between the parties?
7. A costs dilemma of one type or another is not unique to these proceedings, but commonly occurs in family provision proceedings because costs questions can impact on an exercise of the Court's jurisdiction to make a family provision order. See generally GE Dal Pont, Law of Costs (Lexis Nexis Butterworths, Australia, 5th ed, 2021), paragraphs [7.51], [10.32] and [10.34]-[10.44].
8. In these proceedings there is a distinct possibility that: 1. if a family provision order is made in favour of the plaintiff by way of a legacy in an amount considered appropriate without regard to any question relating to the costs of the proceedings and without any cap on the costs recoverable by the plaintiff from the estate of the deceased on "the usual order", the burden of any costs recoverable by the plaintiff on an assessment of costs on "the ordinary basis", may fall unjustly on the beneficiaries of the deceased (particularly, the plaintiff's children, the second and third defendants) bearing in mind such, if any, entitlements they may have to have their costs paid out of the deceased's estate. 2. if the amount recoverable by the plaintiff from the estate of the deceased on a grant of family provision relief and costs (assessed on any basis, with or without a cap) falls short of the amount for which the plaintiff is liable to pay his solicitors he is unlikely to be able to cover the shortfall, in which event he may have no alternative to bankruptcy and, in any event, the utility of any award of family provision relief may be called into question because the commercial effect of orders in his favour will be to benefit his lawyers, not him.
9. A question arising in the proceedings, therefore, is whether the Court can and should make orders designed: 1. to cap the amount of any costs recoverable by the plaintiff from the estate of the deceased (not an unusual form of order); 2. to cap any entitlement his lawyers may have to recover from him costs exceeding costs recoverable by him from the estate, a novel form of order which requires special consideration as it highlights a potential conflict between solicitor and client; and 3. to cap any entitlements to costs other parties, or their lawyers, might have.
10. A related question is whether capping orders must, or should, be specifically foreshadowed at the outset of proceedings if they are to be made at all. The answer to that question is not so much one of "power" as one of "procedural fairness", informed by a need to serve the purpose for which the family provision jurisdiction exists and not merely to protect it from abuse by "overcharging". The procedural framework within which family provision proceedings are routinely conducted puts all participants in the proceedings on notice, from the outset, that a central concern of the Court is that costs be proportionate, fair and reasonable so as to maintain the integrity and utility of the jurisdiction exercised by the Court.
11. All parties in these proceedings have retained their legal representatives on a commercial basis. No party has the benefit of an agreement to have representation on a pro bono basis or on a basis conditional on the outcome of the proceedings.
12. An allocation of responsibility for the costs of the proceedings is complicated by the fact that, until the plaintiff belatedly confined his case to a claim against the estate of the deceased as agreed with the first defendant (his sister, the executor of the deceased's estate and the principal beneficiary of the deceased), substantial costs were incurred by all parties as a result of attempts by the plaintiff (in undeclared derivative claims notionally on behalf of the estate and a family company of the deceased) to claim equitable compensation said to be recoverable against the first defendant for breaches of fiduciary duty owed by her as an enduring attorney of the deceased and as a director of family companies owned by the deceased.
13. Although the plaintiff abandoned formal claims for equitable compensation for breaches of fiduciary duties, a central allegation maintained by him was that, upon an assessment of his claim for family provision relief, an allowance should be made in his favour, against the first defendant, on the basis that, during the lifetime of the deceased, she had (rightly or wrongly) received substantial benefits at the expense (in the sense of on the account) of the deceased in the course of transactions the cumulative effect of which (she intended) was to put beyond his (that is, the plaintiff's) reach assets of the deceased which (with some historical foundation in fact, not law) he believes were earmarked as his inheritance.
14. Whatever the merits of the parties' respective cases, the solicitor-client costs incurred by each party exceed what would ordinarily, intuitively be expected of participation in family provision proceedings of the type ultimately litigated in these proceedings.
15. Some of the difficulty with the question of costs in these proceedings might have been avoided if the only parties to the proceedings were the plaintiff and his sister. They are the only children of the deceased, who died as a widower.
16. In that situation it would have been open to the Court to deal with questions of costs on the basis that, allowing to the executrix an allowance for costs incurred in the ordinary administration of the estate, the burden of costs of the contested proceedings between the parties be dealt with as if the proceedings were an adversarial contest between the two of them, and only the two of them, acting in their own interests as perceived by them.
17. A difficulty in taking that approach in these proceedings is that the plaintiff and the first defendant are not the only parties to the proceedings and not the only parties affected by the outcome of the proceedings. The plaintiff's children were joined in the proceedings as a second and third defendant because they have an interest in the deceased's estate which is in conflict with the interests of the plaintiff and the first defendant.
18. Nevertheless, they are not entirely disinterested in the plaintiff's adversarial contest with the first defendant. They support him against her and, as beneficiaries of the deceased's estate, and speaking broadly, they reserve such rights as they may have to make a claim against her for equitable compensation for maladministration of the estate and the deceased companies if and when she is required to account to them for her administration of the estate and the companies in separate proceedings, if not these. The current proceedings have not thus far lent themselves to a full accounting exercise vis-a-vis the first defendant or as between the two companies of the deceased (VLN Pty Ltd and Alexicon Pty Ltd), which the plaintiff and the second and third defendants contend have been managed by the first defendant in a way which has preferred her interests and those of the company inherited by her (VLN Pty Ltd) over the interests of the company inherited by the second and third defendants (Alexicon Pty Ltd).
19. In times earlier than the time of execution of the deceased's last will a common understanding within his family was that his estate would, in substance, be divided equally between his two children. A rift between the deceased and the plaintiff, coupled with a bankruptcy on the part of the plaintiff, led the deceased to substitute the plaintiff's children (his grandchildren, the second and third defendants) for the plaintiff in disposition of the notional one half of his estate earlier presumptively intended for the plaintiff.
20. A question in these proceedings is whether the burden of any family provision order granted to the plaintiff should be borne by the interests of the grandchildren in priority to any burden imposed on the first defendant's share of the estate or vice versa.
21. What would otherwise be a dilemma in addressing that question may, in a practical sense, be more theoretical than real because (leaving aside attribution of responsibility as between the deceased and the first defendant), in the time between execution of the deceased's last will and his death, he and the first defendant set about diminishing that part of the deceased's estate that had, at an earlier time, been presumptively regarded as that of the plaintiff. A result is that, subject to any orders made by the Court in these proceedings, and upon an assumption that the grandchildren (personally or through Alexicon Pty Ltd) do not pursue an accounting claim against the first defendant (or VLN Pty Ltd), their interests in estate assets are of comparatively nominal value, burdened by the costs incurred by them arising from their joinder as defendants in the proceedings.

THE DECEASED'S ESTATE AND FAMILY RELATIONSHIPS

1. The deceased died on 11 May 2019, just a month or so short of 89 years of age, leaving a will dated 3 April 2013, probate of which was granted to the first defendant on 31 January 2020.
2. The deceased was married, in 1957, to Sofia who died in 2001.
3. There were two children of the marriage; namely: 1. the first defendant, a daughter, born in October 1959 and now aged 65 years. 2. the plaintiff, a son, born in June 1962 and now aged 62 years.
4. The first defendant has three adult children. They are not named as beneficiaries in the will of the deceased. They have made no claim (for a family provision order or otherwise) against his estate.
5. The plaintiff and his wife, Maria, have two children by their marriage; namely: 1. the second defendant, a son born in July 2003 and now aged 21 years. 2. the third defendant, a son born in August 2005 and now aged 19 years.
6. The second and third defendants live with their parents at a property in Wentworth Road, Orchard Hills, together with Maria's two adult daughters by a previous relationship.
7. The plaintiff's stepdaughters are not dependent upon him. Rather the reverse. The Orchard Hills property is presently owned by the stepdaughters as beneficiaries of the deceased estate of their maternal grandmother, Maria's mother. The circumstances in which they acquired the property are controversial as between the plaintiff and the first defendant because the first defendant alleges that the plaintiff and Maria persuaded Maria's mother to make a will in favour of Maria's daughters instead of Maria so as to distance the property from any argument that it comprises matrimonial property of Maria required to be taken into account in assessment of any "need" the plaintiff may have for provision from the estate of the deceased.

THE OSTENSIBLE SIZE AND NATURE OF THE DECEASED'S (NET) ESTATE

1. As disclosed in the "Inventory of Property" annexed to the grant of probate made to the first defendant, the deceased died with property, with an estimated value of $3,080,13.64, comprising: 1. two shares in Alexicon Pty Ltd (a company owned by the deceased and known within the family as "Alexicon") valued at $1.54 million; 2. one share in VLN Pty Ltd (a company owned by the deceased and known within the family as "VLN") valued at $1.54 million; and 3. a bank account with a credit balance of $13.64.
2. The Inventory of Property also disclosed that at the time of his death the deceased owned, as a joint tenant with the first defendant, a property in East Street, Blakehurst (with an estimated value of $1.3 million) and two bank accounts with credit balances totalling $1,244.84.
3. The Inventory of Property does not present a picture of the net distributable estate of the deceased because it does not disclose what are, at least notionally, liabilities of the estate, the burden of which may have been borne by Alexicon to the detriment of the plaintiff's branch of the family rather than equally with that of the first defendant as the plaintiff expected.
4. At the heart of the plaintiff's case is a complaint that his expectations of an inheritance (through a gift to him of Alexicon) equal to that of the first defendant (who expected to be given VLN) has been defeated by the terms of the deceased's last will (which disinherited him in favour of his sons) and the way the affairs of Alexicon and VLN have been managed since the deceased made the last of his three wills (respectively dated 3 April 2008, 21 January 2013 and 3 April 2013) under consideration in these proceedings.

THE PLAINTIFF'S BANKRUPTCY

1. At the time that the deceased made his last will the plaintiff was bankrupt, as was his wife Maria. Both were made bankrupt on a Debtor's Petition. The plaintiff's bankruptcy dated from 23 November 2012. He was discharged from bankruptcy by operation of law on 24 November 2015. Maria's bankruptcy dated from 26 November 2012. She was discharged by operation of law on 27 November 2015.

THE TERMS OF THE DECEASED'S LAST WILL

1. In the events that have happened, under the last will of the deceased, admitted to probate: 1. the first defendant was appointed executor and trustee of the will. 2. the deceased's share in the property at East Street, Blakehurst was ostensibly given to the first defendant. 3. the deceased's company (as he described it) VLN was given to the first defendant. 4. the deceased's company (as he described it) Alexicon was given to the second and third defendants "upon their attaining the age of twenty-three (23) years as tenants-in-common in equal shares". 5. the deceased's residuary estate was given to the first defendant.
2. No provision was made for the plaintiff in the will.
3. Clause 2 of the will offers the following explanation for the plaintiff's omission from the will: "I have made no provision in this Will for my son, Arthur Alexiou as I have previously provided for him in my lifetime. In particular: (a) on or about 1999 I paid Arthur's overdraft with Citibank in the sum of $118,000 that was secured over my property at 25 High Street, Bankstown; (b) further sums of $20,000 and $20,000 to assist with Arthur's purchase and subsequent renovation of his then home at 18 Glenmore Place, Penrith; (b) on or about 2005/6 I gave to after the sum of $40,000 which was money borrowed from National Australia Bank and secured over my and my daughter's property at […] East Street, Blakehurst; (c) various sums in 2009, 2010, 2011 and 2012, of $8,000, $11,000, $20,000."
4. The plaintiff disputes the accuracy of the statements made by the deceased in his will about the provision made for him during the deceased's lifetime. However, three things are clear. First, the deceased did assist the plaintiff financially before the plaintiff became bankrupt. Secondly, the deceased was upset with the plaintiff for becoming bankrupt. Thirdly, the deceased regarded the circumstances in which the plaintiff became bankrupt (after his entanglement in ruinous third party litigation) as bearing adversely upon the plaintiff's worthiness.
5. A fair inference from the terms of the deceased's will, read in conjunction with the extrinsic fact that the plaintiff was a bankrupt at the time the will was made, is that one reason for the plaintiff's exclusion from the will was that the will made provision for the plaintiff's sons, the second and third defendants. The plaintiff invites the Court to accept that he invited the deceased to make provision for the second and third defendants in lieu of him so as to protect his putative inheritance from his creditors. That may be so but the fact remains that the deceased was motivated by disappointment that the plaintiff had allowed himself to fall into complex litigation and bankruptcy.
6. Had the plaintiff not fallen into bankruptcy and (as I find) become estranged from the deceased, he could, all else being equal, have reasonably expected to receive Alexicon (and a commercial investment unit associated with Alexicon) by way of a testamentary gift on terms broadly equivalent to any testamentary provision made for the first defendant through a gift to her of VLN.

THE DECEASED'S TWO INVESTMENT COMPANIES

1. In substantive terms, the deceased's two companies reflected his ownership of two investment properties developed by the deceased between March 1997 and January 2013 or thereabouts.
2. VLN was incorporated on 27 March 1997. Alexicon was incorporated on 1 April 1997.
3. In or about 1999 the deceased constructed two commercial factory units on a block of land in Batt Avenue at Jamisontown, a suburb of Penrith. Although title searches in evidence do not evidence the circumstances in which the land came into the ownership of the Alexiou family (through decisions made by the deceased and his wife), it was the subject of a Deposited Plan registered on 23 September 1997 and Memoranda of Transfer respectively registered on 28 October 1997 and 20 July 1998. Following the last of those transfers, a mortgage was on 20 July 1998 registered in favour of National Australia Bank Limited. It identified the mortgagors (the registered proprietors of the land) as being VLN and Alexicon. The land was the subject of several registered leases commencing with a lease registered on 12 October 1999, perhaps indicative of the date of completion of construction of the units.
4. On 25 January 2013 (during the bankruptcy of the plaintiff) the land was subdivided by registration of a strata plan creating two Lots. In May 2014, upon discharge of a mortgage, Lot 1 was transferred to Alexicon and Lot 2 was transferred to VLN. At about the same time, as part of a refinancing arrangement, the deceased (on 8 April 2014) signed a mortgage given by Alexicon in favour of ING Bank (Australia) Ltd over Lot 1, owned by Alexicon.

THE COURSE OF THE DECEASED'S WILL-MAKING

1. On 3 April 2008, several years after the death of his wife, the deceased executed a will in favour of his children (the plaintiff and the first defendant) expressed to be in anticipation of subdivision of the Jamisontown land into two Lots, reflecting Units 1 and 2 constructed on the land. By that will: 1. the first defendant was appointed executrix and trustee of the will. 2. the deceased's share in the property at East Street, Blakehurst was ostensibly given to the first defendant. 3. Alexicon was given to the plaintiff upon an assumption that, upon subdivision of the Jamisontown land, it would become registered as proprietor of Unit 1. 4. VLN was given to the first defendant upon an assumption that, upon registration of a plan of subdivision, it would become registered proprietor of Unit 2. 5. in the event that "the subdivision and partitioning" of the Jamisontown land "is unsuccessful", the land was given to the plaintiff and the first defendant as tenants-in-common in equal shares. 6. the deceased's residuary estate was given to the first defendant.
2. On 21 January 2013 the deceased executed a further will, his penultimate will, at about the same time as the Jamisontown land was subdivided by registration of a deposited plan and about two months after the plaintiff and his wife became bankrupt. By that will: 1. the first defendant was appointed executrix and trustee of the will. 2. the deceased's share in the property at East Street, Blakehurst was given to the first defendant. 3. VLN was given to the first defendant. 4. Alexicon was given to the second and third defendants "upon their attaining the age of twenty-three (23) years as tenants-in-common in equal shares". 5. the plaintiff was given "the sum of Sixty thousand dollars ($10,000)" [sic] on the basis of a declaration by the deceased that "I have sufficiently provided for my son during my lifetime." 6. the deceased's residuary estate was given to the first defendant.
3. In setting out the terms of the deceased's three wills (respectively dated 3 April 2008, 21 January 2013 and 3 April 2013) I have not recorded that in each case the deceased's share in the Blakehurst property was expressly to go to the first defendant's children upon "attaining the age of 23 years as tenants-in-common in equal shares" in the event of the first defendant predeceasing him and there was a general provision for gifts to pass per stirpes in the event of a beneficiary dying before the deceased or before attaining a vested interest leaving children.
4. Whether or not the typographical error in the deceased's penultimate will involving ambiguity about the amount of the legacy to be given to the plaintiff was a factor in the decision to execute a new will, the scheme of the penultimate will reflects a transition in the deceased's thinking between the first and last of his three wills.
5. After the plaintiff was discharged from bankruptcy the deceased refused the plaintiff's request that he change his will back to the 2008 model, apparently fearful that if the plaintiff (through Alexicon) acquired Unit 1 of the Jamisontown units he would sell it rather than (as the deceased hoped) retain it within the family.
6. The first defendant contends that the deceased was motivated to secure debt against Alexicon in part as an impediment to Unit 1 being sold by the plaintiff, presumably upon an expectation that the plaintiff (personally or vicariously through his sons) might come to own Alexicon and Unit 1.
7. An irony arising from debt being secured against Alexicon is that Alexicon, under the management of the first defendant, was in 2020 forced to sell Unit 1 in order to discharge the mortgage secured over the property and to provide funds for the deceased's estate to defend proceedings brought by the plaintiff against the first defendant as the deceased's legal personal representative. For reasons published by White J on 17 June 2020, reported as Alexiou v Alexiou [2020] NSWSC 748, in proceedings numbered 2020/98568, his Honour dismissed proceedings instituted by the plaintiff (ostensibly as tutor for the second and third defendants) for an injunction to restrain the sale of Unit 1.

NET DISTRIBUTABLE ESTATE

1. In final submissions, after an extended forensic examination of the manner in which the affairs of the deceased, his deceased estate and those of Alexicon and VLN have been managed, the parties (particularly the plaintiff and the first defendant) agreed, between themselves, that the net distributable estate of the deceased can be taken for the purpose of these proceedings to have an estimated value of $922,664. That figure requires adjustment and qualification before it can be accepted by the Court for the purpose of these proceedings.
2. The parties' agreement that $922,664 be taken as the estimated value of the net distributable estate of the deceased for the purpose of the proceedings is predicated upon an assumption that, should the Court make a family provision order in favour of the plaintiff and orders for the payment of costs out of the estate of the deceased, then, if the funds required to satisfy those orders are to be found within the estate itself, the investment unit owned by VLN will have to be sold and, subject to agreed adjustments, applied in discharge of the orders.
3. In light of the parties' agreement it is not necessary to interrogate generally several assumptions underlying their calculations. Suffice to say that a starting point, before adjustments are made, is the sum of $897,664 recorded as the "net amount for distribution" in a document (reproduced in Volume 1 of the Supplementary Court Book at pages 90-93 behind Tab 8) entitled "First Defendant's Statement of Assets and Liabilities of the Estate-18 October 2023". That document is to be read with the plaintiff's competing document (reproduced behind Tab 7 at pages 89A-89B) entitled "Plaintiff's Statement of Assets and Liabilities of the Estate as of 20 October 2023".
4. The figure of $897,664 assumes, inter alia, that VLN's industrial unit at Jamisontown can be sold for $2.1 million (exclusive of GST); that, from the proceeds of sale, about $300,000 will be required to repay a mortgage debt owed on an IMB Bank Loan; and that not less than $600,000 or thereabouts will be required to discharge a Capital Gains Tax liability arising upon sale.
5. Subject to the Court's approval, the parties agreed upon two adjustments to the figure of $897,664.69. The first was an adjustment in favour of the plaintiff, adding a sum of $250,000 perhaps representing an allowance by the first defendant for her application for her own personal purposes of $250,000 of $300,000 borrowed against security granted by Alexicon over Unit 1. Adding $250,000 to $897,664 produces a subtotal of $1,147,664. The second and third defendants do not accept that the $250,000 is a sum sufficient to answer for such, if any, liability she (or VLN) may have to account to them (or Alexicon) for maladministration of the deceased estate and the affairs of the deceased's companies.
6. The parties' second agreed adjustment was that the figure of $1,147,664 should be reduced by a sum of $225,000 to cover the first defendant's unpaid costs of these proceedings, producing the ultimate, agreed value of a net distributable estate of $922,664.
7. An allowance of $225,000 for the first defendant's unpaid costs does not do full justice to an estimate of the costs incurred by the first defendant in defence of the proceedings. At the time of the hearing she had paid approximately $380,000 in costs and the agreed adjustment of $225,000 is a liability for costs on top of that. On notice to the parties, I do not accept that the first defendant has an unqualified entitlement to costs out of the estate, particularly not of the order claimed by her without assessment or any formal constraint.
8. A concern about the quantum of the first defendant's costs, and their proportionality "to the importance and complexity of the subject matter in dispute" (to paraphrase section 60 of the Civil Procedure Act 2005 NSW) is not wholly allayed by the fact that the other parties to the proceedings acquiesced in the first defendant's claim for costs; but the Court, in the circumstances of the present case, cannot allow itself to be deflected from the task appointed for it in determination of the plaintiff's application for a family provision order.
9. A concern about the quantum and proportionality of the costs of the second and third defendants is allayed, in the circumstances of this case, only by the fact that their joinder was considered necessary by the first defendant, and not opposed by the plaintiff, by reason of conflicts of interest and duty (between the first defendant and her nephews) and conflicts of interest (between the plaintiff and his sons) in circumstances in which there was no agreement between the plaintiff and the first defendant that, whatever the outcome of these proceedings as between themselves, no orders would be made adversely affecting the interests of the second and third defendants under the will of the deceased.
10. In management of these proceedings in accordance with the "Guiding Principles" elaborated in Part 6 Division 1 of the Civil Procedure Act 2005 NSW, the Court cannot lose sight of the importance of questions of costs in the just determination of the proceedings. Section 56(1) identifies as the "overriding purpose" of the Act the facilitation of "the just, quick and cheap resolution of the real issues" in proceedings. Section 57(1) requires cases to be managed having regard to objects which include the just determination of proceedings, the efficient disposal of business of the Court, the efficient use of available judicial and administrative resources and the timely disposal of proceedings "at a cost affordable by the respective parties".
11. The circumstances of the joinder of the second and third defendants are recorded in two notations made by Hallen J at a directions hearing held on 27 March 2020, to the following effect: "1. Note that the Defendant [now the first defendant] wishes to have a tutor appointed to represent the interests of the minor children of the Plaintiff, [now the second and third defendants], who are beneficiaries named in the Will of the deceased. 2. Note that the Plaintiff has no objection to that course being taken but wishes to know the identity of that tutor."
12. On 12 June 2020, in anticipation of the joinder of the second and third defendants, Hallen J noted an agreement between the plaintiff and the first defendant to the effect that they would not seek a costs order against the person appointed to act as tutor for the second and third defendants.
13. The representation of the second and third defendants by a solicitor and counsel was necessary throughout the proceedings, I infer, because there was no agreement between the plaintiff and the first defendant that the burden of any orders made by the Court in favour of the plaintiff would be borne exclusively by the first defendant.
14. Putting aside any question about funding of the costs of the second and third defendants, upon an assumption that no orders are made affecting their interest in the estate of the deceased, the value of their (co-owned) interest in the estate of the deceased is said to be somewhere between $19,000 (the balance of Alexicon's bank account) and $180,000 or thereabouts (including an adjustment, as yet to be quantified, in favour of Alexicon by VLN or the first defendant for use of Alexicon's funds for the first defendant's defence of the plaintiff's claim.) Beyond reserving such, if any, entitlements the second and third defendants may have, personally or through Alexicon, I am not in a position to quantify the value of their testamentary entitlements.
15. Although the parties' agreed value of the net distributable estate is based upon an assumption that VLN's industrial unit will have to be sold, the plaintiff contends that the Court should take into account the possibility that the first defendant might, in order to avoid the imminent burden of a large CGT liability of approximately $600,000 or more, seek to fund any orders made by the Court in favour of other parties by personal borrowings that would enable her, in effect, to retain the investment unit without an immediate exposure to a CGT debt.
16. The plaintiff points to the fact that the first defendant enjoys ownership of her home at Blakehurst (acquired first as a joint tenant with the deceased and then by right of survivorship on his death) which has sufficient equity to fund the Court's orders. The property is said to have an estimated value of between $1.75 million-$2.1 million, with a mortgage debt of about $815,000 charged against the property, leaving the first defendant with equity of about $935,000-$1,285,000.
17. Be that as it may, I proceed on the basis that the net distributable value of the estate of the deceased, subject to any orders expressly made for the payment of costs out of the estate, is $1,147,644. This allows the first defendant (almost against better judgement) to keep the $380,000 already paid out of the estate for her costs, but gives her no unqualified entitlement to an allowance in her favour of an additional $225,000 in the absence of any formal assessment of her costs. This approach can be justified on the basis that (subject to the second and third defendants' reservation of any entitlements they might have) the defendants have evidently not taken issue with her payment of costs out of the estate before the final hearing and the Court is driven by a practical necessity to advance these proceedings to a conclusion. It will be necessary, however, to bring to account a sum totalling $129,435.58 representing (as agreed between the plaintiff and the first defendant) the indebtedness of the plaintiff to the first defendant consequent upon costs orders made against him in her favour in the current proceedings and in bankruptcy proceedings.

THE FORMAL PARAMETERS OF THE PLAINTIFF'S CLAIM

1. As a child of the deceased, the plaintiff is an "eligible person" within the meaning of section 57(1)(c) of the Succession Act 2006 NSW and, by virtue of sections 57(1) and 59(1)(a) of the Act, has standing to apply for a family provision order. Although the plaintiff's summons and statement of claim were expressed as a claim against "the estate or notional estate" of the deceased, any claim for the designation of notional estate was abandoned in the amended statement of claim filed on 27 April 2023.
2. The plaintiff's amendment of his statement of claim to omit a claim for designation of property as notional estate of the deceased was accompanied by the plaintiff's abandonment of what, strictly, were claims in the nature of a "representative action" on behalf of the estate of the deceased and Alexicon notionally to recover equitable compensation from the first defendant (or, in effect, an allowance against her in administration of the estate of the deceased) for alleged breaches of fiduciary obligations arising from transactions effected by her as an enduring attorney of the deceased and as a director of Alexicon and VLN.
3. In the final analysis, the plaintiff confined his case to a family provision claim against the estate of the deceased predicated upon: 1. a contention that the deceased should have managed his affairs and those of Alexicon and VLN, and made testamentary provision for him, so as to ensure that he and the first defendant were treated equally; and 2. a contention that an allowance should be made in his favour, against the first defendant, for the benefits she received from the deceased's resources beyond what she would have received had he and she been treated equally.
4. The plaintiff and the first defendant joined issue on the operation of sections 59(1) and 59(2) of the Succession Act.
5. In substance, section 59(1) provides that, on an application for a family provision order, the Court may make an order in relation to the estate of a deceased person if satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased.
6. In substance, section 59(2) provides that the Court may make such order for provision out of the estate of a deceased person as it thinks ought to be made for the maintenance, education or advancement in life of an applicant (left without adequate provision within the meaning of section 59(1)(c)) having regard to the facts known to the Court at the time the order is made.
7. In addressing those issues the parties drew the Court's attention to the matters set out in section 60 of the Succession Act as relevant to the Court's determination. A number of the matters set out in section 60(2) as matters that "may be considered by the Court" have a resonance in these proceedings, although not in a determinative way.
8. Adapted to the circumstances of these proceedings, the following provisions of section 60(2) offer particular insights into how the Court should approach the criteria for which section 59(1) and section 59(2) provide, commonly thought of as implicitly involving an evaluative process of reasoning about the nature of any "moral duty" owed by a deceased person to a claimant for a family provision order and an assessment of that person's "need", if any, for a grant of "family provision" from a deceased estate: 1. Any family or other relationship between the plaintiff and the deceased, including the nature and duration of the relationship: section 60(2)(a). 2. The nature and extent of any obligations or responsibilities owed by the deceased to the plaintiff or any beneficiary of the deceased's estate: section 60(2)(b). 3. The nature and extent of the deceased's estate and of any liabilities or charges to which the estate is subject, as in existence when the plaintiff's application for a family provision order is being considered: section 60(2)(c). 4. The financial resources (including earning capacity) and financial needs, both present and future, of the plaintiff or any beneficiary of the deceased's estate: section 60(2)(d). 5. As the plaintiff is cohabiting with his wife, their sons and his stepdaughters, the financial circumstances of those other persons, if not only the financial circumstances of his wife: section 60(2)(e). 6. The age of the plaintiff when his application for a family provision order is being considered: section 60(2)(g). 7. Any contribution (whether financial or otherwise) by the plaintiff to the acquisition, conservation and improvement of the deceased's estate or to the welfare of the deceased, whether made before or after the deceased's death, for which adequate consideration (not including any pension or other benefit) was not received by the plaintiff: section 60(2)(h). 8. Any provision made for the plaintiff by the deceased, either during the deceased's lifetime or made from the deceased's estate: section 60(2)(i). 9. Any evidence of the testamentary intentions of the deceased, including evidence of statements made by the deceased: section 60(2)(j). 10. Whether any other person is liable to support the plaintiff: section 60(2)(l). 11. The character and conduct of the plaintiff before and after the death of the deceased: section 60(2)(m). 12. The conduct of any other person (such as the first defendant) before and after the death of the deceased: section 60(2)(n).
9. That the list of "relevant matters" set out in section 60(2) is not exhaustive is confirmed not only by the introductory words identifying matters, that "may be considered by the Court", but also by section 60(2)(p) which invites the Court to consider any other matter it considers relevant, including matters in existence at the time of the deceased's death or at the time the plaintiff's application for a family provision order is being considered.
10. A major question in the proceedings is whether (as the first defendant contends) or not (as the plaintiff contends) the relationship between the plaintiff and the deceased was "estranged". That question is interwoven with questions about the deceased's response to the plaintiff's bankruptcy; the reasons for the bankruptcy; and the course of conduct pursued by the deceased and the first defendant (in circumstances in which the plaintiff contends that the first defendant caused the deceased to act unfairly towards him and in her own favour) in wasting property which he expected would, in time, become his inheritance or, at least, the inheritance of his sons.
11. Upon an application of the criteria for which sections 59 and 60 of the Succession Act provide, care needs to be taken not to elevate the word "estrangement" beyond the text of the statute. Like the expressions "moral duty" and "need" it may provide a convenient, short-hand way to identify a breakdown in a family relationship (commonly, between a claimant for a family provision order and the deceased person whose estate is the subject of a claim), but it cannot be allowed to gloss the terms of the statute.
12. The Succession Act contains no provision in the same terms as section 3(2) of the Testator's Family, Maintenance and Guardianship of Infants Act 1916 NSW, which empowered the Court to "refuse to make an order in favour of any person whose character or conduct is such as to disentitle him to the benefit of such an order". Although section 60(2)(m) invites the Court to consider "the character and conduct" of a claimant the Succession Act stops short of a character assessment in terms of a "disentitlement" to relief, requiring instead a broader, more holistic assessment of relationships and the particular circumstances of the case at hand.

CONSIDERATON OF THE PLAINTIFF'S CLAIM

1. There is no reason to doubt that during the plaintiff's formative years he had a close and loving relationship with all other members of his family, including the deceased.
2. It was in that context that the deceased developed a succession plan that involved the development of factory units, as an investment, on the Jamisontown land acquired by himself and his wife, with the intent that, all going well, each of their two children (the plaintiff and the first defendant) would inherit a unit that could be held indefinitely as an income-producing investment and remain in the family in the next generation. That was the plan. It was very important to the deceased. It was reflected in the will he made in 2008 after the death of his wife.
3. However the relationship between the plaintiff and the deceased be described in 2008 or earlier, the terms of the 2008 will are consistent with a finding that, vis-à-vis the deceased's succession plan, the plaintiff was in good standing at the time that will was made.
4. What happened after that time is that the relationship between father and son floundered as the plaintiff, to the dismay of the deceased, became entrenched in controversial litigation; weighed down by litigation-related debt; bankrupt on his own petition; and a supplicant for money, allowing the deceased to apprehend that if he gained control of one of the Jamisontown investment units he would, contrary to the deceased's dearest wishes, sell the unit and dissipate the proceeds.
5. If the fractured relationship between the plaintiff and the deceased be characterised (or not) as an "estrangement", so be it. The factual matrix is more important than any single label attached to the relationship.
6. At the same time as the relationship between the plaintiff and the deceased deteriorated, the relationship between the first defendant and the deceased became closer, as one might reasonably expect. The deceased lived with the first defendant in a home he assisted her to purchase, in their co-ownership, as joint tenants.
7. One does not need to analyse the course of events in terms of an alleged breach by the first defendant of fiduciary obligations owed by her to the deceased to see how the deceased naturally drew away from the plaintiff and towards the first defendant and how, rightly or wrongly, she benefitted personally from her close relationship with the deceased.
8. In any event, in substance, the parties (or, more accurately, the plaintiff and the first defendant) have agreed, in the calculation of the net distributable estate of the deceased available for family provision orders, that an allowance of $250,000 be made, in effect, by the first defendant in favour of the plaintiff, to accommodate concerns of the plaintiff that his sister diverted to her own use loan funds properly belonging to the estate.
9. Despite a shift in his focus away from the plaintiff, the deceased did not abandon the plaintiff's side of the family. Instead, having lost faith in the plaintiff, he substituted for the provision given to the plaintiff in the 2008 will the provision made for the children of the plaintiff (the second and third defendants) in his last will.
10. The strength of the deceased's conviction that the plaintiff should be disinherited in this way is illustrated by the evidence of the solicitor who drafted all three of the deceased's wills under consideration in these proceedings (Mr Skouteris), and by the evidence of the plaintiff that the deceased refused to change his 2013 wills to restore the scheme of the 2008 will after he was discharged from bankruptcy, as well as the evidence of the first defendant about the determination of the deceased to disavow the plaintiff.
11. The plaintiff appears fortunate to have a family of his own (his wife, step children and children) to sustain him. However, in the conduct of his financial affairs and in his experience of litigation, he appears to have been the author of his own misfortune. Leaving aside the litigation which culminated in his bankruptcy, he appears to have approached disputes about the administration of his father's deceased estate as commercial litigation, with bitterly fought allegations of improper conduct on the part of the first defendant, rather than focusing on due management of the estate and the conduct of a family provision claim directed simply to the criteria for which sections 59 and 60 of the Succession Act provide.
12. A formal assessment of costs is not necessary to engage a sense that the plaintiff's conduct has magnified the costs' burden of all parties to these proceedings. His amendment of his statement of claim arose in the context of a need to adjourn a scheduled hearing date because of procedural impediments to his misdirected preparation of his case as unpleaded derivative proceedings designed to recover equitable compensation without orders being made entitling him to represent Alexicon and the deceased's estate.
13. That said, the task of the Court under sections 59 and 60 of the Succession Act is to view the plaintiff's claim in all circumstances of the case as they appear on the evidence before the Court.
14. In terms of legal entitlement, the plaintiff presently has no assets of any substance and, on his evidence, he has few prospects of earning an income. He lives in his stepdaughters' residence and, on the face of their arrangements, he is dependent upon their goodwill for accommodation. His last income tax return available at the time of hearing (for the year ending 30 June 2022) disclosed an income of $21,890, earned mowing lawns. His evidence is that since 1 July 2022 he has not been able to do much gardening because he has "problems" with his knee and cannot "really get around" like he used to do.
15. The plaintiff's claims of impecuniosity cannot entirely be taken at face value. He appears, during the currency of these proceedings, to have formally disposed of an interest in the business of retail food supply known as the "Tucker Van" business in favour of a stepdaughter and to have played down his interest and involvement in the business.
16. It is not possible with anything other than a very broad brush to estimate the present net worth of the parties to these proceedings (including, particularly, the plaintiff and the second and third defendants).
17. Scepticism aside, the practical reality is that the plaintiff has negligible, if any, net worth, and, at the age of 62 years, no practical prospect of earning a substantial income in the future.
18. The second and third defendants, for their part, are young people starting out in life with few assets and, as yet, no sizeable, bankable income, even allowing for the fact that they were beneficiaries in their maternal grandmother's will along with their half siblings.
19. If, and to the extent, the financial circumstances of the plaintiff (and the second and third defendants) are to be compared with the financial circumstances of the first defendant, it is plain that she is comparatively well off and that much of her wealth has been derived from assistance given to her by the deceased.
20. An assessment of the plaintiff's claim to be dependent upon his stepdaughters for accommodation needs to be made in the context of social arrangements within his family. Although he and his wife, at law, may be no more than licensees at will in their shared occupation of the Orchard Hills property, his entitlement to occupy the property is an open question. The registered proprietors of the property (his stepdaughters) are not party to these proceedings. The proceedings have not been used as a vehicle for the determination of rights as between him and any members of his family otherwise than implied in his application for a discretionary family provision order against the estate of the deceased and consequential effects on family members. There is no evidence of estrangement in the relationships between the plaintiff and his immediate family.
21. The plaintiff bears the onus of persuading the Court that, in making no provision for him (beyond that perhaps implicit in the provision made for his sons) the will of the deceased has left him without "adequate provision" for his "proper maintenance, education or advancement in life" within the meaning of section 59(1)(c) of the Succession Act, recognising that what is "adequate" and "proper" in a particular case depends on the circumstances of the case (Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 8 at 19) and that respect must be given to the testamentary intentions of the deceased (Sgro v Thompson [2017] NSWCA 326; Bassett v Bassett [2021] NSWCA 320).
22. Despite the deceased's disavowal of the plaintiff the fact that he substituted a gift to the plaintiff's sons for the gift formerly planned for the plaintiff demonstrates, to my mind, an appreciation in the deceased that the plaintiff had a claim (albeit an attenuated claim) on his bounty and he had a moral obligation (albeit a reduced obligation) to consider the plaintiff's personal circumstances at the time he made his will and looking forward.
23. I am satisfied that the plaintiff has made out a case for provision by reference to section 59(1)(c) for a grant of modest provision from the estate of the deceased, qualified by recognition of the deceased's determination not to confer any testamentary benefit at all upon him directly.
24. In my opinion, a wise and just testator, in the position of the deceased and in light of all the circumstances of the case as now known, and having regard to current social conditions and standards, and consulting the criteria set out in section 60(2) of the Succession Act (Bassett v Bassett [2021] NSWCA 320 at [170]-[171]), would determine, upon an exercise of the discretionary power conferred on the Court by section 59(2) of the Succession Act, that the plaintiff ought receive out of the estate of the deceased a legacy in the sum of $300,000, subject to an allowance in favour of the first defendant of $129,435.58 in satisfaction of his costs liability to her, representing a net legacy of $170,564.42, plus any costs awarded after allowing the parties an opportunity to be heard on the question of costs.
25. In light of that finding, consideration needs to be given to what, if any, orders can, and should, be made imposing a limitation on the amount of costs recoverable by the parties jointly and severally out of the estate of the deceased and, at least in relation to the plaintiff, the amount of costs recoverable from him personally by his lawyers.

THE COURT'S COSTS JURISDICTION IN OVERVIEW

1. As a general proposition, decisions made by the Court about the costs of proceedings must ultimately be made by reference to the facts of the particular case and be embodied in an order.
2. The framework for making costs orders includes (read in combination): 1. legislation, principally, the Civil Procedure Act 2005 NSW, section 98. 2. rules of court, principally the Uniform Civil Procedure Rules 2005 NSW, Part 42. 3. Practice Notes published by the Chief Justice: in family provision proceedings, Practice Note SC Eq 7 (read with CPA section 15). 4. Practice decisions of judges concerning particular types of case, notably those involving an exercise of protective, probate or family provision jurisdiction which routinely deal with the affairs of a central personality (an incapable or deceased person) not wholly present before the Court, interests of persons not a party to the proceedings, and public interest considerations beyond those common to adversarial litigation.
3. The starting point for analysis of the Court's jurisdiction to make costs orders in civil proceedings is the Civil Procedure Act 2005 NSW, section 98, read in combination with the Uniform Civil Procedure Rules 2005 NSW, rule 42.1 and ancillary provisions.
4. So far as is material, CPA section 98 is in the following terms: "Courts powers as to costs 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act-- (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. (2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court. (3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings. (4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to-- (a) costs up to, or from, a specified stage of the proceedings, or (b) a specified proportion of the assessed costs, or (c) a specified gross sum instead of assessed costs, or (d) such proportion of the assessed costs as does not exceed a specified amount. (5) … (6) In this section, "costs" include-- (a) the costs of the administration of any estate or trust, and (b) in the case of an appeal to the court, the costs of the proceedings giving rise to the appeal, and (c) in the case of proceedings transferred or removed into the court, the costs of the proceedings before they were transferred or removed."
5. The legislative scheme embodied in CPA section 98 and UCPR rule 42.1, in essence, is that generally, unless it appears to the Court that some other order should be made as to the whole or any part of the costs of proceedings, the Court is to order that "costs follow the event". In particular specialist lists of the Court's business (including the Family Provision List), the Court routinely departs from the general rule that "costs follow the event" so as to accommodate the purpose for which a particular jurisdiction exists. The particular singularity of the family provision jurisdiction is underscored by legislative provisions specifically applicable to the disposition of family provision proceedings: Succession Act, section 99, read with sections 78(1)(b) and 98. I leave to one side section 93 of the Trustee Act 1925 NSW which specifically empowers the Court to make costs orders in proceedings with respect to the management or administration of a trust or a deceased estate: cf, Reeves v Reeves (No 2) [2024] NSWSC 386.
6. Chapter 3 of the Succession Act supplements the standard legislation empowering the Court to make costs orders with special provisions, the central one of which is SA section 99, which is in the following terms, with emphasis added: "Costs (1) The Court may order that the costs of proceedings under this Chapter in relation to the estate or notional estate of a deceased person (including costs in connection with mediation) be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit. Note - Section 78 sets out the circumstances in which the Court may make a notional estate order for the purpose of ordering that costs be paid from the notional estate of a deceased person. (2) The regulations may make provision for or with respect to the costs in connection with proceedings under this Chapter, including the fixing of the maximum costs for legal services that may be paid out of the estate or notional estate of a deceased person. (3) This section and any regulations under this section prevail to the extent of any inconsistency with the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014). An assessment under that legislation of any costs in respect of which provision is made by a regulation under this section is to be made so as to give effect to that regulation. (4) In this section, legal services has the same meaning as in the Legal Profession Uniform Law (NSW)."
7. No regulations appear to have been made under SA section 99(2) regulating the legal costs of parties or legal practitioners involved in the conduct of family provision proceedings. That such regulations could be made is suggested by the terms of SA section 99(3). Whether (and, if so, to what extent) sections 99(2) and 99(3) are limited by section 99(1) is a moot point. The Succession Regulation 2020 NSW deals with prescribed fees payable (under SA section 51) upon deposit of a will in the office of the Registrar for safe keeping. It does not address costs orders.
8. The institutional framework within which the Court must make decisions about the costs of family provision proceedings includes the case management provisions of the Civil Procedure Act 2005, notably sections 56, 57, 58 and 60 in Part 6 of the Act (to which reference has been earlier made) which bear upon a need for the efficient conduct of proceedings and a need to recognise that proceedings should be conducted "in such a way that the cost of the parties is proportionate to the importance and complexity of the subject-matter in dispute".
9. A number of sections in Part 6 of the CPA bear directly upon questions of costs. The "overriding purpose" of the Act and rules of court, in their application to civil proceedings, is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": CPA section 56(1). For the purpose of furthering that overriding purpose, proceedings are to be managed having regard, inter alia, to the disposal of proceedings "at a cost affordable by the respective parties": CPA section 57(1)(d). CPA section 58 mandates that in its case management of proceedings, the Court must seek "to act in accordance with the dictates of justice" and, in that context, to "have regard to the provisions of CPA sections 56 and 57. CPA section 60 establishes the normative standard of the proportionality of costs to the importance and complexity of the subject matter in dispute.
10. Ancillary provisions of the Uniform Civil Procedure Rules reinforce the case management provisions of the Civil Procedure Act. UCPR rule 42.4 expressly empowers the Court "of its own motion or on the application of a party" to specify the maximum costs that may be recovered by one party from another . The definition of an assessment of costs on the "ordinary basis" (an expression used in UCPR rule 42.2 and defined by CPA section 3(1)) incorporates by reference the provisions of Division 3 of Part 7 of the Legal Profession Uniform Law Application Act 2014 NSW particularly sections 76, 172 (1) and 172 (2) of the Legal Profession Uniform Law NSW. It finds there a requirement that at "[a] law practice must, in charging legal costs, charge costs that are no more than fair and reasonable in all the circumstances and that in particular are proportionately and reasonably incurred and proportionate and reasonable in amount".
11. Practice Note SC Eq 7 (relating to Family Provision proceedings and, recently, Probate proceedings) has taken different forms. However, each form of the Practice Note has to date included a provision in the same terms relating to "costs capping". In the Practice Note issued on 14 May 2009, which commenced on 1 June 2009, it was paragraph 24. In a Practice Note issued on 12 February 2013, with a commencement on 1 March 2013, it was paragraph 24. In the Practice Note, issued on 16 June 2023 with a commencement of 1 July 2023, it was paragraph 37. In the current Practice Note issued on 13 June 2024, with a commencement of 17 June 2024, it is paragraph 40.
12. Those paragraphs have consistently read as follows: "Orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the net distributable value of the estate (excluding costs of the proceedings) is less than [$x]."
13. In all Practice Notes before the current one the $x was $500,000. In the current Practice Note it is $1 million.
14. Other now-standard provisions of Practice Note SC Eq 7 impose upon parties and their lawyers obligations to disclose to the Court and other parties verified estimates of costs and disbursements and the like, with an implicit acceptance that "costs" might be a relevant factor in the Court's determination of proceedings and, optimistically, encouraging all parties to contain the quantum of costs and disbursements incurred in proceedings.
15. Specifically, Practice Note SC Eq 7 contains provisions requiring a disclosure of costs and disbursements up to and including a mediation; an updated disclosure of estimates of costs and disbursements shortly before the conduct of a final hearing; disclosures by an administrator of costs paid out of an estate; and disclosure by a plaintiff of any fee agreement, in the nature of a conditional costs agreement, containing an uplift factor.
16. A theory underlying a routine disclosure of estimates of costs and disbursements, rendered mandatory by Practice Note SC Eq 7, is that a public exposure of cost estimates would cause parties to look for an early resolution of proceedings (either at a formal mediation or in private settlement negotiations) rather than having to bear the burden of foreshadowed costs, as well as encouraging lawyers to exercise moderation in the costs and disbursements incurred.
17. In practice, in the absence of court orders specifying or capping costs, parties and their lawyers appear alike to have lost any sense of embarrassment about excessive costs.
18. Nevertheless, in these proceedings three points are to be made. The first is that, by means of a Practice Note, the Court (in the absence of historical "costs scales" used to tax costs) has endeavoured to regulate costs as between lawyer and client without proscription. The second is that cost estimates should be taken seriously; may be enforced or used as a basis for moderation of costs, and may provide a marker against which costs capping orders of various types may be made to protect the integrity and utility of family provision proceedings. The third is that an ever-present risk that costs may be capped as between lawyer and client should serve as an incentive to lawyers to resist excesses of enthusiasm on the part of clients who seek, beyond what is reasonable, to engage in adversarial family provision litigation.
19. It is not necessary in these proceedings to do more than notice specific legislative provisions authorising costs orders against legal practitioners who, speaking broadly, have engaged in conduct that warrants a personal costs order against them: principally, CPA section 99 (read with Practice Note SC Gen 5 entitled "Costs Orders against Legal Practitioners"). Section 99 does not displace, and may be informed by, the inherent jurisdiction of the Court in the supervision of legal practitioners admitted to practice by the Court, commonly explained by reference to Myers v Elman [1940] AC 282 at 319: Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 at [18]-[20].
20. In any event, CPA section 5 specifically records that nothing in that Act or the Uniform Rules limits the jurisdiction of the Court.
21. The jurisdiction of the Court to make an order that costs payable out of a deceased estate in family provision proceedings be capped, and the jurisdiction to make an order that costs be summarily determined in a lump sum, are well settled: eg, Detheridge v Detheridge [2019] NSWSC 183 at [174]-[177]; Wheatley v Lakshmanan [2022] NSWSC 851.
22. When viewed through a conservative prism, the jurisdiction of the Court to impose a limit on the costs recoverable by a lawyer from a client, in the absence of misconduct on the part of the lawyer, depends upon an exercise of the Court's inherent jurisdiction and must be exercised with particular caution.
23. CPA section 98 must be read with a definition of "costs" in CPA section 3(1) to the effect that "in relation to proceedings, [costs] means costs payable in or in relation to the proceedings and includes fees, disbursements, expenses, and remuneration". Although CPA section 98 is expressed in broad terms, and may arguably extend to orders regulating costs as between lawyer and client, their principal focus is upon party-party costs and, with the extended definition of "costs" in CPA section 98(6)(a), the costs of administration of an estate or trust. Whether CPA 98(1)(a)-(b) are broad enough to extend to solicitor-client costs appears to be a novel question, in these proceedings noticed but not determined.
24. In a paper prepared for the Blue Mountains Law Society's 2024 Succession Conference in September this year (entitled "The Dynamics and Dilemmas of Costs Orders upon an Exercise of 'Welfare' Jurisdiction"), published on the Court's website, I had occasion to consider, inter alia, the nature and scope of the Court's "costs jurisdiction" in family provision proceedings. I do not here repeat my commentary more than I may have done in this judgment. Suffice to say that attention was drawn to the observations, and collective wisdom, in the judgment of Gaudron J in Singer v Berghouse (1993) 67 ALJR 708, 114 ALR 521; the judgment of Ball J in Baychek v Baychek [2010] NSWSC 987 at [21]-[26]; the judgment of Basten JA in Chan v Chan [2016] NSWCA 222; 15 ASTLR 317 at [54] and the judgments of Hallen J in Blendell v Byrne (No 2) [2019] NSWSC 798 at [71]-[74] and Koellner v Spicer [2019] NSWSC 1571 at [37]-[38] and [47].
25. Upon any consideration of the existence, nature and scope of the Court's inherent jurisdiction to make an order imposing a limit on the costs recoverable by a lawyer from a client in the absence of misconduct on the part of the lawyer, particular notice must be taken of the judgment of Bell CJ in Hartnett v Bell [2023] NSWCA 244 at [123]. There his Honour articulated "[s]everal statements of authority … in relation to the Court's inherent and supervisory jurisdiction" (here reproduced with full case citations): "(1) The Court's inherent jurisdiction "can be exercised in any circumstances where the requirements of justice demand it and thus cannot be restricted to closed and defined categories of cases": McGuirk v University of New South Wales [2010] NSWCA 104 at [178] (McGuirk); Reid v Howard (1995) 184 CLR 1 at 16; [1995] HCA 40 (Reid); Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 at 344; [1966] 1 NSWR 354 at 360-361; (2) "The juridical basis of [the inherent jurisdiction] is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner": IH Jacob, "The Inherent Jurisdiction of the Court" (1970) 23 Current Legal Problems 23 at 27-28, as cited in McGuirk at [185]; (3) "The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice": Hamilton v Oades (1989) 166 CLR 486 at 502; [1989] HCA 21; (4) The inherent jurisdiction "is not confined to a situation in which there is no statute or rule of court that could possibly apply to what is to be done in that regard. The true rule is that a court may exercise its inherent or implied powers in a particular case, even in respect of matters that are regulated by a provision of a statute or rules of court, so long as it can do so without contravening any such provision": Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421 at 427; [1993] FCA 171 (Landsal) (with added emphasis), citing Taylor v Attorney-General [1975] 2 NZLR 675 at 680, 687-688 and 692-693; (5) The Court can do whatever "may be necessary to prevent any injustice occurring with respect to matters which come within its cognizance": Ex parte Farren; Re Austin (1960) 77 WN (NSW) 743 at 744, cited in Dwyer v National Companies & Securities Commission (1988) 15 NSWLR 285 at 287; (6) The inherent jurisdiction of the Court overlaps with, but is not displaced by, s 23 of the Supreme Court Act 1970 (NSW): McGuirk at [177]; (7) On the other hand, "the inherent power and the jurisdiction conferred by s 23 of the Supreme Court Act are to be exercised only as necessary for the administration of justice", and "the power is not at large": Reid at 16-17; (8) The inherent jurisdiction cannot authorise the making of orders excusing compliance with statutory obligations or preventing the exercise of authority deriving from statute: Reid at 16; Commonwealth Trading Bank of Australia v Inglis (1974) 131 CLR 311 at 318-319; [1974] HCA 17; Doyle v The Commonwealth (1985) 156 CLR 510 at 518; [1985] HCA 46; (9) The inherent jurisdiction does not extend to making orders simply because the Court believes it would be fair to do so: see, for instance, Moore & Anor v Assignment Courier Ltd [1977] 2 All ER 842 at 846; see also The Siskina [1979] AC 210 at 262; (10) The Court has an inherent or general jurisdiction to regulate the costs, charges and disbursements claimed by officers of the Court, and to prevent exorbitant demands: Woolf v Snipe (1933) 48 CLR 677; [1933] HCA 5 at 678; (11) The Court may exercise its inherent jurisdiction in relation to a solicitor's costs "in the way it might think fit": Storer & Co v Johnson (1890) 15 App Cas 203 at 206. (12) This well-established supervisory jurisdiction is designed to impose on solicitors higher standards than the law applies generally. The jurisdiction is disciplinary and compensatory. It is not exercised for the purposes of enforcing legal rights, but for the purpose of ensuring honourable conduct on the part of the Court's own officers. It is distinct from any legal rights or remedies of the parties, it is unaffected by anything which affects the strict legal rights of the parties, and it is not limited to technical principles: Atanaskovic & Ors v Birketu Pty Ltd - Supervisory Jurisdiction [2020] NSWSC 573 at [29]-[30], approved in Atanaskovic Hartnell v Birketu Pty Ltd (2021) 105 NSWLR 542; [2021] NSWCA 201 at [127]; (13) Statutory provisions dealing with the issue of lawyers' costs are complementary to this inherent jurisdiction, and do not oust it: Woolf v Snipe (1933) 48 CLR 677; [1933] HCA 5 at 678; Pryles & Defteros (a firm) v Green [1999] 20 WAR 541; [1999] WASC 34 at [24] (Pryles); see also Re Jabe; Kennedy v Schwarcz [2021] VSC 106 at [46] (Re Jabe) and s 264 of the Legal Profession Uniform Law 2014 (NSW). The two jurisdictions are enlivened by different acts and must be analysed separately: Whyked Pty Limited v Yahoo!7 Pty Limited [2008] NSWSC 477 at [18]; (14) Further, "there is an overlap between the Court's general jurisdiction to review solicitors' remuneration and the doctrines of undue influence, unconscionable transaction and fiduciary conflict as they apply to solicitors and clients": Malouf v Constantinou [2017] NSWSC 923 at [136]; see also Kowalski v Cole [2017] SASCFC 23 at [25]; (15) More specifically, "there remains an inherent jurisdiction of the Court to make orders that a legal representative personally pay the opposing party's costs directly for unnecessary or wasted costs, that power arising out of the Court's supervisory jurisdiction with respect to legal practitioners admitted by the Court": NHB Enterprises Pty Ltd v Corry (No 5) [2020] NSWSC 1838 at [44], citing Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 at [20]; (16) The purpose of the jurisdiction of the Court with respect to costs charged by its officers is "to secure that the solicitor, as an officer of the court, is remunerated properly, and no more, for work he does as a solicitor" (emphasis added): Electrical Trades Union v Tarlo [1964] 1 Ch 720; [1964] Ch 20 at 734; see also Re Jabe at [44]; (17) The exercise of supervisory jurisdiction over officers of the Court is not governed by "strict legal rights and duties or matters of technicality." Rather, "in exercising supervisory jurisdiction, the Court does not engage in a final determination of legal rights but determines whether one of its officers should be held to ethical and honourable behaviour": Atanaskovic & Ors v Birketu Pty Ltd - Supervisory Jurisdiction [2020] NSWSC 573 at [80]-[81]; (18) The jurisdiction to scrutinise the remuneration of officers of the Court is not limited to cases of exorbitant overcharging: Atanaskovic at [145]. Nor is it limited by any contractual arrangements made between the parties: Pryles at [24], which will engender "jealous" scrutiny by a Court: Clare v Joseph [1907] 2 KB 369 at 376; (19) The inherent jurisdiction extends to making orders for solicitors to repay an amount charged to their own client: see, e.g., Harrison v Tew [1990] 2 AC 523; [1990] 1 All ER 321 at 538."
26. To these examples might be added the fact that, since at least Rajski v Computer Manufacture & Design Pty Ltd [1982] 2 NSWLR 443 (affirmed on appeal at [1983] 2 NSWLR 122), it has been established that a power to award security for costs is an inherent (or implied) power of the Court, enabling the Court to regulate its own practice and procedure to procure a proper and effective administration of justice and to prevent abuses of process: Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105 at [33]-[35]; Mohareb v Harbour Radio Pty Ltd [2020] NSWCA 231 at [11].
27. The High Court's discussion of cases in which a broadly expressed statutory jurisdiction allows costs orders to be made against a non party or the like might also cast light upon the nature of any inherent jurisdiction to make orders regulating costs as between lawyer and client in the absence of misconduct on the part of a client. A number of cases of this nature were noted in Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 187-188.
28. At 188, Mason CJ and Dean J wrote specifically: " … it is artificial to attribute the orders for costs against solicitors to an exercise of the disciplinary power rather than to an exercise of the jurisdiction to award costs of the proceedings".
29. SCA section 23 (referred to in Hartnett v Bell and elsewhere) is in the following terms: "23 Jurisdiction generally The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales."
30. In my opinion, the Court's inherent jurisdiction to make costs orders extends to orders regulating costs as between lawyer and client, at least in family provision proceedings where the interests of justice mandate a limit on the costs of lawyers recoverable from their clients so as to maintain the integrity and utility of the proceedings as a means of making provision for an eligible person in need and to preserve an estate for beneficiaries beyond what is necessary to make that provision.
31. That the Court's jurisdiction must be exercised with care, mindful of a conflict of interests between lawyer and client inherent in a lawyer's retainer, and conscious of a need to afford procedural fairness to affected parties, does not tell against the existence of the jurisdiction but counsels caution in its exercise.
32. The capping orders I propose to make in these proceedings are intended to provide a framework for an orderly, and summary, determination of disputes about costs - in service of the purpose for which the family provision jurisdiction exists, and to bring home to parties and their respective lawyers alike that the integrity and utility of family provision proceedings is heavily dependent upon a disciplined conduct of proceedings and moderation in costs incurred or claimed.

PROPOSED ORDERS

1. Subject to allowing the parties an opportunity to be heard about the form of the orders and costs, I propose to make orders to the following effect: 1. ORDER that the plaintiff receive a legacy of $300,000 payable out of the estate of the deceased conditional upon him allowing in favour of the first defendant the sum of $129,435.58 in full satisfaction of any liability he may have for costs orders hitherto made against him in her favour. 2. ORDER that the plaintiff's costs of the proceedings, assessed on the ordinary basis and capped at $200,000, be paid out of the estate of the deceased. 3. ORDER that the first defendant's costs of the proceedings, assessed on the ordinary basis and capped at $200,000 (in addition to the sum of $380,000 hitherto paid), be paid out of the estate of the deceased. 4. ORDER that the second and third defendants' costs of the proceedings, assessed on the indemnity basis and capped at $200,000, be paid out of the estate of the deceased. 5. ORDER that the burden of the legacy for which order 1 provides and the costs for which orders 2, 3 and 4 provide be borne by the first defendant as residuary beneficiary of the deceased. 6. ORDER, subject to further order, that the costs of the plaintiff, as between lawyer and client, be capped at $275,000. 7. ORDER, subject to further order, that the costs of the first defendant, as between lawyer and client, be capped at $225,000 (in addition to the sum of $380,000 hitherto paid). 8. ORDER, subject to further order, that the costs of the second and third defendants, as between lawyer and client, be capped at $200,000. 9. RESERVE to the parties and their respective legal representatives liberty to apply, so far as their interests may be affected, for: 1. An order (under section 98(4)(c) of the Civil Procedure Act 2005 NSW or otherwise) that the costs for which orders 2, 3 and 4 provide be in a specified gross sum instead of assessed costs. 2. An order (under the Civil Procedure Act 2005 NSW, section 98(4)(c) or otherwise) that the costs payable under any other orders affecting them be in a specified gross sum instead of assessed costs. 3. An order that orders 6, 7 and 8 be discharged or varied. 1. ORDER that any application made pursuant to that grant of liberty to apply be made by way of a notice of motion filed and served no later than three months after the date of these orders (or such other time as the Court may allow) returnable before the Registrar in the first instance.
2. The "caps" on lawyer and client costs for which draft orders 6 and 7 provide are not random. In each case they take into account an estimate of the parties' lawyers given to the Court. They are not to be taken as carrying the imprimatur of the Court. On the contrary, they appear to be excessive for the conduct of what should have been a tightly run family provision claim. They are intended to provide both a maximum beyond which a lawyer cannot, without the leave of the Court, go and a benchmark against which a lawyer or a client can assess whether to make an application to the Court for the discharge or variation of orders or for a summary assessment of costs as between lawyer and client.
3. In their submissions about what costs orders should be made the parties should give consideration to whether there may be an element of double counting in the first defendant's recovery from the plaintiff of a specified sum referable to existing costs orders. Prima facie, for example, to the extent that the sum of $129,435.58 represents indemnification of the first defendant for costs she has met from estate assets, that amount should be brought to account in favour of the estate by a reduction of the cap of $200,000 for which draft order (3) provides. The fact that the first defendant is the residuary beneficiary may, however, mean that the economic effect of any such adjustment is negligible.
4. In my opinion, any costs payable out of the estate of the deceased in favour of the plaintiff or the first defendant should be assessed on the ordinary basis (rather than the indemnity basis), reflecting the adversarial nature of their contest. Given the basis upon which the second and third defendants were joined in the proceedings, in my opinion any costs payable to them out of the estate should be assessed on the indemnity basis.
5. Before any orders for costs are made I will allow the parties an opportunity to bring to attention such, if any, offers of compromise as may have been exchanged. For a recent review of principles governing formal offers of compromise in estate litigation, see Reeves v Reeves (No 2) [2024] NSWSC 386. Those principles, focused upon UCPR rule 42.14, do not operate so as to exclude consideration of less formal offers of compromise than those contemplated by the UCPR, a consideration often of some importance in Equity proceedings in general and family provision proceedings in particular because of the complexity of outcomes that need to be taken into account in the formulation of an offer of compromise.
6. I also invite the parties to agree upon, or make submissions about, the question whether (pursuant to section 66 of the Succession Act): 1. the testamentary provision made for the second and third defendants should be accelerated so that they come into their inheritance immediately upon orders being made in disposition of these proceedings, without having to wait until they attain the age of 23 years; 2. an order should be made directing the first defendant, as executrix of the estate of the deceased and his residuary beneficiary, to pay into court, the sum of $180,000 to abide the orders of the Court upon a determination of any claim the second and third defendants may have against the first defendant, or (through Alexicon) VPL, for misapplication of funds of Alexicon; 3. orders should be made for a sale of Unit 2.
7. As presently advised, I am minded to make orders of the nature of (a) and (b), effecting such adjustments as a necessary, just and equitable incident of the principal orders that are to be made, allowing the affairs of Alexicon and VPL to be managed in an orderly way; bringing to an end the first defendant's management of Alexicon; and crystallising the financial consequences of her management of the deceased's affairs.
8. I do not propose to make orders for the sale of Unit 2 at this stage of the proceedings unless invited to do so. I intend to allow the parties (particularly the first defendant) an opportunity to consider alternative means of funding the Court's orders.
9. It may be prudent, but not necessary, to enter a formal judgment in favour of the first defendant, against the plaintiff, for the $129,435.58 he owes her for costs and to make a formal order for that judgment to be set off against the $300,000 legacy allowed to him.
10. I anticipate that, should a party or his or her lawyer exercise the liberty to apply for an order that cost orders be discharged or varied, the Court might proceed to make lump sum costs orders in a summary manner so as to avoid protracted cost assessment procedures.

ADDENDUM (11 December 2024) ex TEMPORE

1. On 24 October 2024 I published reasons for judgment in these proceedings reported as Alexiou v Alexiou [2024] NSWSC 1340.
2. The orders I proposed to make to give effect to those reasons are set out in paragraph 148 of the judgment. They contemplated a family provision order in favour of the plaintiff in the form of a legacy in the sum of $300,000 (based on a net distributable estate of $922,664) subject to an allowance of $129,435.58 in favour of the first defendant in full satisfaction of any liability the plaintiff may have for costs orders hitherto made against him in favour of the first defendant.
3. The proposed orders also contemplated a regime of costs orders designed to regulate the quantum of costs payable out of the estate and as between the lawyers and their respective clients.
4. The estimate of the net distributable estate upon which the judgment was founded ($922,664) was predicated upon two assumptions; namely: 1. the industrial unit at Jamisontown registered in the name of VLN could be sold for $2.1 million (exclusive of GST); and 2. an allowance of not less than $600,000 or thereabouts would need to be made for discharge of a capital gains tax liability arising from the sale.
5. Only upon publication of the judgment of 24 October 2024 did the plaintiff (upon a title search of VLN's industrial unit) discover that, without notice to other parties to the proceedings or the lawyers then acting for her in the proceedings, the first defendant (through Mr Peter Skouteris, solicitor) had caused a sale of the unit to be effected for $2,620,000, with the proceeds of sale applied by the first defendant inter alia in the payment of a capital gains tax liability of $702,542.62 and otherwise for her personal benefit.
6. On 25 October 2024 the plaintiff (ex parte but in the presence of counsel for the second and third defendants) sought and obtained freezing orders and a discovery order against the first defendant (and an order against Mr Skouteris for the production of records) pending an application for evidence in the principal proceedings to be reopened.
7. On 4 November 2024 the plaintiff affirmed a detailed affidavit in which she disclosed, chapter and verse, what she had done with the proceeds of sale of VLN's unit. In written submissions dated 22 November 2024, prepared by her current solicitor, accounting details were updated.
8. The parties today have agreed that the net distributable estate of the deceased should, upon recalculation in light of the evidence now available, be taken to be $1,259,035.07.
9. With the benefit of evidence adduced by all parties, and their written submissions, reproduced in a court book (the index to which I have marked as MFI C23), and with the benefit of oral submissions from counsel, I have reconsidered what orders should be made in disposition of the proceedings. In the course of that I have given fresh consideration to the operation of the judgements required of me in the context of ss 59(1)(c) and 59(2) of the Succession Act 2006 NSW.
10. The parties have not required me in these reasons to elaborate (or perhaps more accurately restate) the detailed consideration given to the proceedings in light of the additional evidence that has been adduced.
11. Suffice to say that I have determined that, in all the circumstances presently known, the plaintiff should be allowed a legacy of $400,000 in lieu of the proposed legacy of $300,000.
12. In the course of coming to that conclusion, I have had the benefit of submissions from the parties as to ancillary questions which might, by my determination, bring these proceedings to an end generally.
13. One of the factors that needs to be taken into account is that, at an early stage of the proceedings, the plaintiff made offers of settlement to the first defendant which were not accepted but which were much less than what I have found to be the plaintiff's entitlement, leading to an unexceptional conclusion that the plaintiff's costs should be awarded, in large measure, on the indemnity basis.
14. The parties have put before the Court evidence that provides a foundation also for lump sum costs orders to be made, and the defendants, as between themselves, have come to an agreement as to the accountability of the first defendant to the second and third defendant for estate-related transactions.
15. In all the circumstances, it is not necessary for me to engage the procedure for the regulation of costs proposed in the principal judgment.
16. With this explanation for departures from the proposed orders, I am comfortable in making the following orders (here published with editorial adaptation) on the understanding that they are made for the purpose of bringing to an end all questions in dispute between the parties: 1. ORDER that the plaintiff receive a legacy of $400,000 payable out of the estate or notional estate of the deceased conditional upon him allowing in favour of the first defendant the sum of $129,435.58 in full satisfaction of any liability he may have for costs orders hitherto made against him in her favour. 2. ORDER that the plaintiff's costs of the proceedings, assessed at $300,000, be paid out of the estate or notional estate of the deceased. 3. ORDER that the first defendant's costs of the proceedings, in the amount of $272,000 (in addition to the sum of $380,000 hitherto paid), be paid out of the notional estate of the deceased. 4. ORDER the second and third defendants' costs of the proceedings, assessed at $155,000, be paid out of the estate or notional estate of the deceased. 5. ORDER that the burden of the legacy for which orders 1, 2, 3 and 4 provide and the costs for which orders 2, 3 and 4 provide be borne by the first defendant as residuary beneficiary of the deceased. 6. ORDER pursuant to section 66 of the Succession Act 2006 NSW that: 1. one of the two shares in Alexicon Pty Ltd (ACN 078 050 898) vest in the Second Defendant, 2. the other share vest in the Third Defendant, absolutely upon the making of these orders. 1. NOTE that for the purpose of these proceedings and for the purpose of bringing to an end all disputation between the first defendant (on the one hand) and the second and third defendants (on the other hand) it is agreed between the defendants that the amount to be borne by the first defendant in favour of the second and third defendants for funds of Alexicon Pty Ltd applied by VLN Holdings Pty Ltd (under the control of the first defendant) and the first defendant for her own use in administration of the estate of the deceased is $150,000. 2. NOTE that upon the first defendant submitting to an order that the sum of $150,000 be paid to the second and third defendants out of the notional estate of the deceased the second and third defendants (by their counsel) give to the Court an undertaking that they will not require the first defendant to file and pass, or to verify file and pass accounts in relation to the estate of the deceased. 3. UPON that undertaking to the Court, ORDER that the sum of $150,000 be paid to the second and third defendants out of the notional estate of the deceased. 4. DECLARE that the land comprised in folio identifier xxx and known as xxx Street, Blakehurst NSW 2221 is designated as notional estate to the extent required to pay the amounts payable in the above orders. 5. ORDER that the Freezing Order made on 25 October 2024 and extended on 8 November 2024 be varied to permit the first defendant, though her current solicitor (Mr Andrew Fleming of Walker & White): 1. to distribute funds in the current solicitors trust account in accordance with the above orders, 2. to sell or encumber xxx Street, Blakehurst NSW for the purpose of paying the amounts payable pursuant to the above orders, so long as the net proceeds are paid to the first defendant's current solicitor's trust account in the first instance. 1. RESERVE to all parties (and to Mr Andrew Fleming of Walker & White) liberty to apply for further orders or directions in the working out of these orders. 2. ORDER that these orders be entered forthwith.

Amendments 18 December 2024 - Addendum added at [158] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2024