Mr Waters, of counsel for the plaintiff, has also relied on that passage from McHugh J emphasising that his Honour said that the purpose of costs orders was not to punish an unsuccessful party.
3 As well as the matters generally set out in my judgment, a number of the matters that I take into account in determining the question of costs in these proceedings are as follows. The summons in the proceedings filed on 13 July 1999, was in simple form, claiming the payment or transfer of the whole of the assets of the estate to the plaintiff. Mr Waters today has frankly and properly conceded that the plaintiff's primary submission at the trial was that it was beneficially entitled to the balance of the estate (after the legacy and costs are met) and, to support that contention, both denied the existence of a secret trust, and argued its failure along the way, if it ever were created. He has also correctly pointed out that the plaintiff did argue at the trial various possible outcomes of the confused situation with which the Court was presented. I should certainly place on record that the conduct of Mr Waters and his instructing solicitors in the matter was at all times entirely proper and straightforward. On the other hand, it is true, as is submitted by Mr Hallen, that there was at the least a very substantial adversarial overtone in the litigation. In the end, as appears from my judgment, the primary issue was whether there was no effective secret trust, so that the plaintiff now took the balance of the fund beneficially, or whether that balance had some other destination, such as that which I ultimately found that it did have.
4 There is therefore some considerable case for the plaintiff being ordered to pay the defendant's costs on the basis that it is the unsuccessful litigant in adversary litigation in accordance with the principle stated in Oshlack supra. However, as I have already indicated, the situation is not a simple one. The Court faced a very complicated situation. The complications related to the estate of the testator and were largely caused by the testator's own actions in deciding to deal with her estate by way of a secret trust as the best way in all the circumstances of making provision for her husband. This was so that if, as occurred, she predeceased him he would be assured of the continuing benefit of her residence or of any fund into which it was converted during the remainder of his life. The secret trust was created orally only and no written record of it was left. It was in its final form communicated only to Jack Singh and not to her other executor, the defendant, who, in the event, is the only executor who acted, placing that executor in a difficult position in face of the allegation of a secret trust. Furthermore, it was communicated to Jack Singh when he was a person already under a cloud in relation to the activities (in which the testator herself had also, to some extent, been involved) which led to his criminal conviction and imprisonment. The complications were rendered all the greater by Jack Singh's subsequent conduct in giving, at different times, different versions of exactly what it was that the testator had said to him at the material time, as has been traversed in my judgment.
5 Mr Hallen has commented upon the hint or suspicion of unworthy conduct on the part of the now controllers of the plaintiff; that is adverted to in para 13 of my judgment. I should, however, say, as Mr Waters has pointed out, that there was no issue joined between any of the Singh boys on the one hand, and Mr Cirulis on the other, as to the circumstances in which the Singh boys' shares were transferred to Mr Cirulis. That matter arose in this case only by a side wind and did not fall for determination. I have been careful to make it plain in [13] of my judgment that, although I thought it necessary to record the matters or circumstances surrounding the transfer of the Singh boys' shares to Mr Cirulis, I recorded them as matters of allegation only, and matters in respect of which I made no finding. It is true that no evidence was given to the contrary of those allegations at the trial, where the matters were not directly in issue, or even now, at the time of the costs argument, when perhaps they might be regarded as having some relevance. However, in all the circumstances I do not think it appropriate to take those matters into account in determining the question of costs.
6 There is, however, conduct on the part of Mr Cirulis in evidence in the proceedings which does, to my mind, have some relevance on the question of costs. That conduct is his writing of a letter, which is Exhibit 3 in the proceedings. That was a letter to Jack Singh, who was already in prison, dated 12 March 1999. The following portions of that letter are material:
"I am assisting John [Salmond] with Aljaro matters and the Dos situation. I am endeavouring to make plans to meet with him in London so as to attempt to finalise Aljaro's situation. The anti (sic) continues to rise and it will be expensive to re-stabilise the matter and activate the finance facility.
The facts of the situation are as follows:-
1 Aljaro is the beneficiary of Lelia (sic) Salmond Estate and these funds plus more are required to finalise Dos.
2 Current shareholder of Aljaro is myself. Directors are John and myself.
...
7 Bolster was, (sic) probably has, briefed Counsel however no (sic) suggests he requires a statement from yourself.
8 As a previous officer of the (sic) Aljaro you should provide no such statement as the case should be determined on the facts and documentation.
...
12 Aljaro's records show no evidence of it having accepted a trustee position in relation to the funds. The matter is not in its records nor should it be given that it was merely the beneficiary of the estate.
Obvious Comments:-
On all accounts, Aljaro should be given the funds and it can determine if it hold (sic) these in its own right or as trustee for a supposed beneficiary.
Why is Bolster so intent on retaining the funds given that they would then be passed to another beneficiary.
Who does Bolster represent.
A private investigator advised there was consideration given to having your children the beneficiaries prior to Mrs Salmonds sic) death.
...
Bolster has been obtaining statements and has now delayed his advise (sic) from Counsel pending a statement from you. Obviously they have a weak case (or no case) and are still trying to find the support they require to avoid them losing the estate proceeds.
The company records show no trust accepted and, given probate documents, the funds obviously belong to Aljaro. This goes well to see the transaction with Dos completed and Aljaro getting its affairs back in order."