Bradley v Irvine; Irvine v Irvine

Supreme Court of NSW|2024-07-08|Before: Pike J

JUDGMENT

On 17 June 2024, I delivered judgment in these proceedings: see Bradley v Irvine; Irvine v Irvine [2024] NSWSC 727 (Principal Judgment). These reasons assume familiarity with and maintain the same defined terms as the Principal Judgment.
In the Principal Judgment, I determined that the claims of Cynthia, Karen and Glennis should be dismissed and an order for further provision should be made in favour of Dawn. I directed the parties to confer to seek to agree orders, including as to costs.
The parties in the Irvine Proceedings have agreed orders, including orders that Dawn's costs of the Irvine Proceedings are to be paid by Cynthia, Karen and Glennis.
The parties in the Bradley Proceedings have not been able to agree an appropriate costs order.
Accordingly, these reasons determine the appropriate costs order.

Overview of the Positions of the Parties

Relevant offers

The following offers were relevantly made.
First, on 19 April 2022, Michael made formal Offers of Compromise to each of Cynthia, Karen and Glennis offering them $40,000 each out of the Deceased's estate, with each party to pay their own costs of the proceedings (19 April 2022 Offers). Each of the 19 April 2022 Offers was sent under the cover of identical detailed letters from Michael's solicitor, pointing out the difficulties with the cases propounded by Cynthia, Karen and Glennis and also pointing out that if for any reason the 19 April 2022 Offers were not effective as formal offers, they would take effect as a Calderbank offer. The 19 April 2022 Offers were several and open for 28 days.
Second, on 25 August 2022, Michael made formal Offers of Compromise to each of Cynthia, Karen and Glennis, offering them $45,000 each out of the Deceased's estate, with each party to pay their own costs of the proceedings (25 August 2022 Offers). Again, each of the 25 August 2022 Offers was sent under the cover of a detailed letter and advised that each offer would take effect as a Calderbank offer if need be. The 25 August 2022 Offers were several and open for 28 days.
Third, on 12 October 2022, Michael made formal Offers of Compromise to each of Cynthia, Karen and Glennis, offering for the proceedings to be dismissed with no order as to costs (12 October 2022 Offers). Again, there was a detailed covering letter. The 12 October 2022 Offers were several and open for 28 days.
Fourth, by without prejudice letter dated 1 March 2024 from Michael's solicitors to the solicitors for Cynthia, Karen and Glennis, Michael offered to settle the proceedings on essentially a "walk away" basis - in the terms that the proceedings be dismissed with no order as to costs (1 March 2024 Offer). The offer also included a term that all of the parties would execute a Deed, whereby the plaintiffs would release Michael, Peter, and, relevantly, Dawn, from any further actions, proceedings, demands and/or claims. The offer was conditional on all plaintiffs accepting and was open for a period of 14 days.
Fifth, a further without prejudice offer was made by letter dated 9 April 2024 offering $20,000 to each of Cynthia, Karen and Glennis with no order as to costs (9 April 2024 Offer). The offer also included the requirement to enter into a Deed contained in the 1 March 2024 Offer, including releasing Dawn. It was a joint offer to all plaintiffs, open for seven days.
Finally, by letter dated 26 April 2024 an open offer was made by Michael to pay $55,000 to each of Cynthia, Karen and Glennis, with no order as to costs (26 April 2024 Offer). It also included the requirement for a Deed to be entered into, including releasing Dawn, and was a joint offer open for five days. The letter also contained detailed reasons as to why there was no more money to offer and why the 26 April 2024 Offer was a reasonable one.
The only offer in evidence from Cynthia, Karen and Glennis was a formal Offer of Compromise dated 5 March 2024 offering to settle for $45,000 for each of Cynthia, Karen and Glennis with no order as to costs.

Relevant Principles as to costs

The starting point is obviously s 98 of the Civil Procedure Act 2005 (NSW) whereby costs are in the discretion of the Court.
In the context of Offers of Compromise, r 42.15A of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides: 42.15A Where offer not accepted and judgment no less favourable to defendant (cf SCR Part 52A, rule 22; DCR Part 39A, rule 25; LCR Part 31A, rule 20) (1) This rule applies if the offer is made by the defendant, but not accepted by the plaintiff, and the defendant obtains an order or judgment on the claim no less favourable to the defendant than the terms of the offer. (2) Unless the court orders otherwise- (a) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and (b) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, assessed on an indemnity basis- (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and (ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.
In Bates v Cooke (No 2) [2014] NSWSC 1322 (Bates), cited with approval by Hallen J in Rogers v Rogers [2018] NSWSC 1982 at [316], Kunc J stated at [33]: [33] Taking into account the language of r 42.15A, a party seeking to persuade the Court to order otherwise must identify some feature or features of one or more of the proceedings, the claim, the offer (including, for example, when it was made) and the order or judgment obtained by the successful party which provide a rational basis for the court to displace what the rule specifies is the costs order to which 'the defendant is entitled'.
In Haertsch v Whiteway (No 2) [2020] NSWCA 287 (Haertsch), Macfarlan, Meagher and Leeming JJA stated at [5]-[7] and [9]: [5] It is well established that family provision applications "raise different issues with respect to costs" to those raised by other proceedings: Salmon v Osmond [2015] NSWCA 42 at [172] (Beazley P, McColl and Gleeson JJA agreeing). The liberal approach to costs in such cases has a long provenance, though reference is now typically made to remarks of Gaudron J in Singer v Berghouse [1993] HCA 35; (1993) 67 ALJR 708 at 709, to the effect that "costs in family provision claims generally depend on the overall justice of the case" and that it is "not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant's financial position". Indeed, in some jurisdictions it would seem that no order as to costs is the usual or general consequence of an unsuccessful application: Bowyer v Wood (2007) 99 SASR 190 at 210, 211; [2007] SASC 327; Underwood v Underwood [2009] QSC 107 at [32]-[33]. [6] However, as Giles JA observed in Jvancich v Kennedy (No 2) [2004] NSWCA 397 at [11] (Handley and McColl JJA agreeing), the "overall justice of the case" is "not remote from costs following the event". For one thing, the default rule encourages prospective applicants for provision to have regard to the significant costs consequences to themselves of making such an application. But while the default rule in r 42.1 applies to family provision proceedings, its application remains subject to the court exercising greater than usual "liberality and discrimination" in deciding whether to depart from it: Salmon v Osmond at [174] (Beazley P, McColl and Gleeson JJA); Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [26]-[27] (Basten JA, Gleeson JA agreeing); [138]-[139] (Barrett JA, Gleeson JA agreeing). [7] It is not uncommon, though atypical, for an unsuccessful applicant not to be ordered to pay the defendant's costs where the applicant is or would become impecunious and the claim for provision was reasonable or borderline: see eg, with no attempt to be exhaustive, Re Sherborne Estate (No 2) (2005) 65 NSWLR 268; [2005] NSWSC 1003; Moussa v Moussa [2006] NSWSC 509; Bevilacqua v Robinson (No 2) [2008] NSWSC 520; Ray v Greenwell [2009] NSWSC 1197; Dugac v Dugac [2012] NSWSC 192; Raiola v Raiola [2014] NSWSC 1172; Purnell v Tindale [2020] NSWSC 746. … [9] The impecuniosity of an unsuccessful party, without more, is no reason to deprive a successful party of an order for costs to which they are otherwise entitled: Sassoon v Rose [2013] NSWCA 220 at [10] (Meagher JA, Gleeson JA agreeing); Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [26]-[27]. However, the irrelevance of impecuniosity is said to be "subject to some relaxation in family provision cases": Chapple v Wilcox at [141]. One reason that the impecuniosity of an unsuccessful applicant for family provision is of greater than usual relevance is that adverse costs orders might alter the basis on which the claim for provision was rejected, and thereby cause or justify a further application: McCusker v Rutter [2010] NSWCA 318 at [34]. That consideration is of little or no relevance to this case: the plaintiff's claim failed for reasons unrelated to her financial position and no further application for provision could possibly succeed.

Determination

I turn now to consider the appropriate costs order in the Bradley Proceedings. I first consider this issue by reference to the application of the rules. I then consider whether the position should be relaxed given the nature of these proceedings and the principles summarised in Haertsch.
The starting point is whether the 19 April 2022 Offers were valid offers under the rules. It was not suggested on behalf of Cynthia, Karen and Glennis that the 19 April 2022 Offers were not valid. They clearly were.
There can also be no doubt that Michael has obtained a judgment against each of Cynthia, Karen and Glennis no less favourable than the terms of the 19 April 2022 Offers.
There is thus a clear onus on each of Cynthia, Karen and Glennis to persuade the Court that indemnity costs should not be ordered. As set out by Kunc J in Bates, they must identify some feature or features which provide a rational basis for the Court to displace the normal rule.
A number of matters were raised by Cynthia, Karen and Glennis which I treat as matters relied on to otherwise order.
First, it was contended that Cynthia, Karen and Glennis could not have reasonably assessed the 19 April 2022 Offers. The basis for this contention appears to be that Michael misled Cynthia, Karen and Glennis about the value of the cattle and the nominal estate. The argument appears to be that it was not until an expert valuation of the Toogong Partnership was obtained that an assessment could be made, and reliance is also placed on the fact that Michael then made a further settlement offers, being the 25 August 2022 Offers.
I do not accept these contentions. The matters raised by Cynthia, Karen and Glennis did not prevent a proper assessment of the offers. In my view, the claims suffered from a number of problems, some stemming from the estrangement between the plaintiffs and the Deceased for over 20 years prior to his death. A number of those problems were set out in the detailed letters which accompanied the 19 April 2022 Offers. Those problems were unrelated to the value of the estate or notional estate which is all that the value of the Toogong Partnership would have gone to. Those problems, or the facts on which they were based, were all known as at 19 April 2022. Properly advised, Cynthia, Karen and Glennis should have appreciated these problems.
Second, criticism was made of the way that Michael conducted the case. The criticism was directed to the way Michael sought to defend the allegations of historical sexual abuse, namely him positively contending for a finding that the allegations were made up for financial gain. As I understood the submission, it was to the effect that the hearing could and should have been concluded within 5 days and thus was exacerbated by Michael's conduct.
I do not accept these contentions. Michael's conduct does not provide a basis for the Court to otherwise order or, as will appear below, to deny any costs order against Cynthia, Karen and Glennis. Michael's conduct cannot be criticised in circumstances where it was Cynthia, Karen and Glennis who introduced the allegations. Further, it was not until during the course of the hearing, and indeed it was not without equivocation during the hearing, that Cynthia, Karen and Glennis were only contending that the Court should find that Cynthia, Karen and Glennis believed that the abuse occurred.
As counsel for Michael submitted, even during the hearing, counsel for Cynthia, Karen and Glennis left open the possibility that he would contend for a finding that the abuse in fact occurred.
Third, Cynthia, Karen and Glennis contended that there was a basis for the claims they advanced - the claims were not frivolous or vexatious claims with no prospects of success. Reference was made to other cases where awards for further provision have been made, including Doshen v Pedisich [2013] NSWSC 1507, Rada v Smith [2024] NSWSC 273 and Estate Gooley, Deceased [2022] NSWSC 734. Reference was also made to other cases where victims of alleged sexual abuse have received provision, being Barrass v Kaine [1999] NSWSC 245, Jones v Smith [2016] VSCA 178, Wilson v Wright; Wilson v Wright [2024] NSWSC 519 and Watton v Mac Taggart [2020] NSWSC 1233.
It is axiomatic that each case must be analysed on its own facts and little assistance is gained by referring to other cases where an order for further provision has been made. In any event, none of the cases referred to provide a basis for Cynthia, Karen and Glennis to reasonably hold the view that their claims would likely succeed or recover more than the $40,000 offered to each plaintiff in the 19 April 2022 Offers. They do not provide a basis for me to otherwise order for the purposes of UCPR r 42.15A.
Finally, reliance was placed on the financial impact that an order for costs would have on each of Cynthia, Karen and Glennis. This is obviously a matter that should be proved or at least material put before the Court to provide a rational basis for the contention. The evidence led at the hearing does not support the contention advanced. Whilst an adverse costs order would obviously impose some financial hardship on each of Cynthia, Karen and Glennis, the evidence does not justify a conclusion that bankruptcy would be the outcome. No further evidence was sought to be adduced on the costs application.
In any event, the claims of Cynthia, Karen and Glennis all failed for reasons unrelated to their financial position: see Haertsch at [9].
None of the matters relied on by Cynthia, Karen and Glennis provide a rational basis for the Court to otherwise order.
Having regard to the operation of the rules, the appropriate costs order in the Bradley Proceedings is that contended for by Michael.
For completeness, although not necessary to decide, if for some reason the 19 April 2022 Offers did not provide a basis for the Court to order indemnity costs, the subsequent formal offers - the 25 August 2022 Offers and the 12 October 2022 Offers - would have. They were each valid offers, which were bettered by Michael and no rational basis has been put forward for the Court to otherwise order.
Had it been necessary to consider the subsequent without prejudice and open offers - being the 1 March 2024 Offer, the 9 April 2024 Offer and the 26 April 2024 Offer - I would not have regarded them as providing a basis for the Court to order indemnity costs. This is for the simple reason that each of the offers contained, as a condition, that a Deed be entered into, releasing Dawn from any future claims. It was not in dispute that the effect, and indeed intent, of this condition was to prevent any future claims on Dawn's estate by Cynthia, Karen and Glennis. This appears to have been the reason why the offer was not accepted. That condition - namely a release of Dawn - was not something that could have been obtained in the present two proceedings. The rejection of the offers was not unreasonable. Further, Michael did not achieve a better result than that contained in the offers.
Cynthia, Karen and Glennis contended that the costs order which they propounded - essentially, they pay their own costs and Michael's costs are paid out of the estate - reflected the overall justice of the case. This contention was no doubt seeking to involve the principles applied in family provision cases, as summarised in Haertsch. The same matters I have considered above in the context of whether I should otherwise order were relied on.
I do not agree that the appropriate costs order is that which is contended for by Cynthia, Karen and Glennis. This is a paradigm case where effect should be given to the prima facie position under the rules following the non-acceptance of a formal Offer of Compromise. As at 19 April 2022, each of Cynthia, Karen and Glennis, properly advised, should have appreciated that the offers made were better than they were ever going to achieve in the proceedings. The cases were not borderline, particularly when considered against the 19 April 2022 Offers.
Notwithstanding the nature of these proceedings and the additional burden that a costs order will place on each of Cynthia, Karen and Glennis, there is no reason why the Deceased's estate should simply bear the costs of the proceedings in circumstances where, had the 19 April 2022 Offers been accepted, as they should have been, no costs would have been incurred from April 2022. The overall justice of the case requires that indemnity costs be paid from 19 April 2022.
I turn now to consider the appropriate costs order in the Irvine Proceedings.
As set out above, Dawn and Michael jointly seek an order that Dawn's costs be paid, either in whole or in part, by Cynthia, Karen and Glennis on an indemnity basis or alternatively on the ordinary basis. Cynthia, Karen and Glennis oppose such an order and contend that Dawn's costs should come out of the Deceased's estate on the ordinary basis.
Dawn and Michael's position was that there likely would not have been a need for Dawn to commence proceedings if Cynthia, Karen and Glennis did not commence proceedings, because Michael and Dawn would likely have worked out an arrangement for Dawn's aged care needs without the need to commence proceedings. Dawn was forced to commence proceedings to protect her position since Cynthia, Karen and Glennis brought their claims, putting at risk the value of the estate and thus potentially substantially reducing the amount available to Michael and Peter to later provide for Dawn.
Cynthia, Karen and Glennis contended that they should not be ordered to pay any of Dawn's costs as they are not a party to the Irvine Proceedings and it was always necessary for Dawn to commence her own proceedings as she was seeking more than she had received under the Will. It was also contended that Dawn and Michael together operated a "trial by ambush" by proffering joint agreed orders on day one of the hearing, without having approached Cynthia, Karen and Glennis for their consent prior to 17 May 2024.
In circumstances where the two sets of proceedings were properly heard together, I think that it is appropriate in the circumstances that Cynthia, Karen and Glennis bear some of Dawn's costs of her proceedings.
It is speculative as to whether, had Cynthia, Karen and Glennis not commenced proceedings, it would not have been necessary for Dawn to have commenced proceedings. Whilst it appears that Dawn and Michael have a good and cooperative relationship they did not agree on all matters as to the further provision to be made in Dawn's favour. It was necessary for me to resolve a number of issues, some of which were substantial in financial terms - see [241]-[261] of the Principal Judgment. This tells against agreement being reached out of Court.
It is clear, however, that if it was necessary for proceedings to be commenced by Dawn, the hearing of those proceedings would not have taken six days. Dawn was required to take part in a six-day hearing rather than a much shorter one.
Counsel for Dawn, to my observation, appropriately did not weigh into the Bradley Proceedings to any significant extent. I infer that the preparation work carried out by Dawn's legal team was appropriately focussed on Dawn's claim and thus the costs incurred in preparation would likely have been similar, even if Cynthia, Karen and Glennis did not commence proceedings and it was necessary for Dawn to make a claim.
There were, however, additional hearing costs which have been incurred in circumstances where, as I have found, had Cynthia, Karen and Glennis accepted the 19 April 2022 Offers, as they, properly advised, should have, there would not have been a six-day hearing.
It is difficult to bring any mathematical precision to what costs would have been incurred by Dawn had Cynthia, Karen and Glennis not commenced proceedings or accepted the 19 April 2022 offers. Doing the best that I can, in my view, the appropriate order is that Cynthia, Karen and Glennis pay 50% of Dawn's costs of her proceedings on the ordinary basis and otherwise, Dawn's costs be paid out of the Deceased's estate on the ordinary basis.

Orders

In the Irvine Proceedings, the Court makes the following orders: 1. Declares that of the monies currently held in the joint bank account of the plaintiff and defendant (with account number ending in 2848), the sum of $142,045.64 - being the insurance payment for the plaintiff's contents of the residence (as it then was) of the property situated at and known as 16 Barrack Street, Toogong, being the land known as Lots 1, 2, and 3 of 17/758984 and Lots 1, 2, 3, 4, 5, 6, 7, 9, and 10 of Section 2/758984 and Lot 1/1222228 (the Property) - inclusive of any interest accrued, is a sum to which the plaintiff is solely entitled. 2. Declares that the sum of $93,951.14 - being the total of Maxwell Charles James Irvine's (the Deceased) One Path Superannuation Fund monies - and any interest accrued, are funds held by the estate on trust for the plaintiff (Superannuation Fund) as the nominated beneficiary of the fund. 3. [Order 3 not used] 4. Orders that the Superannuation Fund (inclusive of interest) be paid to the plaintiff within 14 days of the date of the making of these orders and declarations. 5. Orders that no interest is to be paid on the Superannuation Fund if it is paid to the plaintiff within 14 days of the date of the making of these orders and declarations, but if not so paid, interest is to be paid on any unpaid part thereof, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), from the 15th day after the date of the making of these orders and declarations, until paid in full. 6. Declares that the sum of $1,009,416.10 - being the insurance payment for the residence of the Property rendered uninhabitable by floods on or about 14 November 2022 (Residence Insurance Fund) - inclusive of any interest accrued and currently held in the joint bank account of the plaintiff and defendant (with account number ending in 2850) are, pursuant to s 42(4) of the Trustee Act 1925 (NSW) and clause 7(o) of the will of the Deceased dated 12 April 2021 (Will), funds to be applied by the defendant to the building of the replacement residence on the Property and the associated expenses as recorded in paragraph [23] of the defendant's affidavit dated 10 May 2024 (Original Residence). 7. Orders that if a Building Occupancy Certificate in respect of the Original Residence has not been obtained by the defendant within 18 months of the granting of Development Consent, then at the request of the plaintiff, the defendant is to acquire a property up to the value of the Crisp order limit referred to in Order 9(c) (Replacement Residence) for the use and benefit of the plaintiff, and in which she shall be entitled to reside during her lifetime (the plaintiff's Right to Demand a Replacement Residence). The plaintiff's Right to Demand a Replacement Residence is, however, not enlivened if the defendant is continuing to take all reasonable steps in an expeditious fashion to progress the rebuild of the Original Residence. 8. Orders that the defendant is to hold on trust for the plaintiff any surplus funds remaining from the Residence Insurance Fund after the construction of the Original Residence, or any surplus funds remaining after the purchase of the Replacement Residence, (the Residence Trust Funds) for the purpose of fulfilling any other obligations arising as a result of these orders. 9. Orders, pursuant to Chapter 3 of the Succession Act 2006 (NSW), that in lieu of the provision made for the plaintiff by clause 5(c) and Schedule 1 of the Will, the plaintiff receive the right to reside for her lifetime in the Original Residence or the Replacement Residence, whichever is applicable, upon the following terms: 1. The defendant shall pay the rates and outgoings (including insurance premiums). 2. The plaintiff shall keep the property in good repair. 3. If the plaintiff should request, the defendant shall use up to $550,000 (Crisp order limit) from the estate of the Deceased (Estate) (however so derived): 1. To purchase and hold for the plaintiff's use and occupation from time-to-time other homes or accommodation rent free at a net cost to the Estate not exceeding the Crisp order limit; 2. To pay the plaintiff by interest free advance for her to purchase by lump sum or periodical payments the right to have provided to or for her by a church, government or other reputable private institution or organization providing the same for elderly, retired, sick or incapacitated persons accommodation with or without health care, hospitalisation and nursing or one or more of such services or like services (Aged Care Facility) for her lifetime at a cost not exceeding the Crisp order limit, and whether or not the cost of such purchase or any part thereof will be recoverable on her ceasing to remain in such accommodation, or on her death; 3. To pay to the plaintiff for her own use any surplus of the Residence Trust Funds from time to time held but not required for or in connection with carrying out the foregoing purposes. 4. The interest free advance by the defendant to the plaintiff referred to in Order 9(c)(ii) shall be repayable to the defendant by the plaintiff or her estate in the event of her vacating the accommodation in the Aged Care Facility or upon her death. 5. The home or the accommodation bond (or so much of the accommodation bond that remains after proper contractual deductions have been made by the Aged Care Facility) is to form part of the balance of the Estate when the plaintiff ceases to reside in the home of Aged Care Facility or when the plaintiff dies. 1. There be liberty to apply to the Court for directions or for advice in the event of any doubt, difficulty or dispute arising in respect of the implementation of these orders. 2. The plaintiffs in the related proceedings 2021/00314246 pay 50% of the plaintiff's costs, calculated on the ordinary basis. 3. The plaintiff's costs, calculated on the ordinary basis, otherwise be paid out of the Estate. 4. The defendant's costs, calculated on the indemnity basis, be paid or retained (as the case may be) out of the Estate.
In the Bradley Proceedings, the Court makes the following orders: 1. The Amended Summons be dismissed. 2. The plaintiffs pay the defendant's costs on the ordinary basis up to and including 19 April 2022, and on the indemnity basis thereafter. 3. The defendant's costs, calculated on the indemnity basis, be paid or retained (as the case may be) out of the Estate.

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: 31 July 2024

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