Bushell v George (No 2)

Medium Neutral Citation: Bushell v George (No 2) [2026] NSWSC 137

Hearing dates: On the papers

Date of orders: 02 March 2026

Decision date: 02 March 2026

Jurisdiction: Equity

Before: Hmelnitsky J

Decision: 1. The first plaintiff is to pay half of the defendants’ costs on the ordinary basis.
2. There is no order as to the parties’ costs in relation to the claims by the second plaintiff, with the intent that each party is to pay his and her own costs of those claims.

Catchwords: COSTS — Party/Party — Orders when proceedings involve multiple parties — Where one plaintiff was entirely unsuccessful and one plaintiff partly successful — Whether to apportion costs between plaintiffs
COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Where unsuccessful plaintiff’s claim involved a family provision claim — Whether costs in the unsuccessful plaintiff’s family provision claim should be excepted from general rule that costs follow the event — Where partly successful plaintiff was unsuccessful on almost all aspects of the case she advanced at hearing — Whether partly successful plaintiff should receive any of her costs

Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited: Arian v Nguyen [2001] NSWCA 54; (2001) 33 MVR 37
Bushell v George [2025] NSWSC 1347
Chen v Chan (No 2) [2009] VSCA 233
Cretazzo v Lombardi (1975) 13 SASR 4
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Harris v Morabito Holdings Pty Ltd [2018] NSWSC 1353
Hughes v WA Cricket Association (Inc) [1986] FCA 511; (1986) ATPR 40-748
Jvanich v Kennedy (No 2) [2004] NSWCA 397
McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484
Mizzi v Reliance Financial Services Pty Ltd [2007] NSWSC 37
Singer v Berghouse [1993] HCA 35; (1993) 67 ALJR 708

Texts Cited: Nil

Category: Costs

Parties: James Rodney Bushell (First Plaintiff)
Hannah Sophy McPherson (Second Plaintiff)
Peter Bruce George as Executor of the Estate of the late Wayne Keith Bushell (First Defendant)
Abraham Edward Bushell (Second Defendant)

Representation: Counsel:
T Alexis SC / A Zheng (Plaintiffs)
D W Rayment SC / A Smorchevsky (Defendants)
Solicitors:
Cole & Butler (Plaintiffs)
Antunes Lawyers (Defendants)

File Number(s): 2021/70628

Publication restriction: Nil

JUDGMENT

1. I delivered my judgment in these proceedings on 17 November 2025: Bushell v George [2025] NSWSC 1347 (J). These are my reasons in relation to the question of costs. They should be read in the light of my judgment. I will use the same naming conventions used in my judgment.

2. The proceedings were brought by two plaintiffs, James and Hannah, who are brother and sister. Each brought a claim in proprietary estoppel and a claim for further provision under the Succession Act 2006 (NSW) against the estate of their late father, Wayne.

3. James was wholly unsuccessful in his claims. Hannah was unsuccessful in her proprietary estoppel case but succeeded in her claim under the Succession Act. I determined that she should have further provision in the sum of $300,000 in addition to her legacy under the will. Orders giving effect to that determination were made by consent.

4. The parties are now in dispute as to where, in these circumstances, the burden of costs should lie.

The parties’ positions on costs

5. The plaintiffs submit that costs should be ordered as follows:

6. James ought to pay 25% of the defendants’ costs of the proceedings.

7. The defendants ought to pay 50% of Hannah’s costs.

8. The defendants submit that the plaintiffs should be ordered to pay the defendants’ costs of the proceedings. Alternatively, if there is to be any apportionment at all (which they deny), they submit that an appropriate apportionment would be as follows:

9. James ought to pay the whole of the defendants’ costs of the proceedings.

10. Hannah ought to pay 90% of the defendants’ costs of the proceedings.

11. All of the proposed orders are as to costs on the ordinary basis. Although there is evidence of some without prejudice settlement communications, neither party seeks any special costs order on the basis of the other’s failure to accept an offer.

12. The parties’ positions are highly divergent. The plaintiffs’ position would see the defendants recover only one quarter of their costs of the proceedings (from James) and, in addition, be required to pay half of Hannah’s costs. The defendants’ position would see them recover the entirety of their costs even if there was to be some apportionment in relation to Hannah, which they oppose in any event.

13. The rationales for these positions were said to be as follows.

14. The plaintiffs submit that their claims were distinct. They submit that the scope and volume of evidence and the amount of time devoted at the hearing to James’s claims was broadly the same as that in relation to Hannah’s claims. The starting point, they say, is that James should only be liable for half of the defendants’ costs.

15. Further, James submits that to the extent his claim was based on the Succession Act, this should be treated as a clearly separable claim to which different principles apply as to costs. In this respect, he says it is appropriate to have regard to the well-known statement of Gaudron J in Singer v Berghouse [1993] HCA 35; (1993) 67 ALJR 708 at 709 where her Honour said:

“Family provision cases stand apart from cases in which costs follow the event … [C]osts in family provision cases generally depend on the overall justice of the case. 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.”

12. In that regard, James submits that the principal reason his Succession Act claim failed was my conclusion that his present financial position was such that he was not in any particular financial need: see for example J[381]-[385], [470]-[473] and [478]. He submits that his position would be different – and my findings about his financial position would effectively be falsified – if he were now made to bear the costs of bringing his Succession Act claim. This, he submits, is a reason not to require him to pay the costs of that claim at all. He says that if he is ordered to pay the whole of the costs, he may need to sell his Cammeray investment property. His position was summarised as follows:

“… [T]he Court ought not make a costs order against James’ [sic] with respect to his unsuccessful family provision claim, given that (i) it would have the necessary effect of worsening his financial position (which was a crucial component to the finding that the existing legacy was adequate provision), and (ii) James’ financial position will already be detrimentally affected by his costs liability on the estoppel claim.”

13. James submits that so far as their case against him was concerned, half of the defendants’ costs are fairly apportionable to the Succession Act claim. That is, of their overall costs, half are apportionable to James and, in turn, half of those costs are apportionable to the Succession Act claim. It follows that of their total costs, only 25% are apportionable to defending James’s proprietary estoppel claim. James submits that it is only the costs of defending the proprietary estoppel claim that he should be ordered to pay.

14. For her part, Hannah submits that she is a successful plaintiff and that an award of costs should be made in her favour to reflect that success. She submits that strong justification and exceptional circumstances must exist before a successful party is ordered to pay any part of an opponent’s costs: Arian v Nguyen [2001] NSWCA 5; (2001) 33 MVR 37 at [37]. She also submits that her financial circumstances, which warranted the making of a family provision order in the sum of $300,000, would be materially worsened if she were now made to pay any part of the defendants’ costs of the proceedings. She submits that such an order would cause the ‘intended effect of the further provision … [to] miscarry’.

15. Consistently with the approach adopted by James, she submits that half of her costs may fairly be attributed to the cost of advancing her Succession Act claim.

16. The defendants’ primary position is that James and Hannah ought to be ordered to pay the defendants’ costs jointly and severally, and there should be no apportionment made as between the plaintiffs. They say that the costs of dealing with James’s claims were not substantially different to the costs of dealing with Hannah’s claims, as there was significant overlap in the issues, and much of the evidence used in support of James’s case was also used in Hannah’s case and vice versa.

17. If, as the plaintiffs seek, the costs are apportioned between the plaintiffs, the defendants’ position in relation to James is that he lost and so should pay their costs. They dispute the assertion that half of their costs of the proceedings may fairly be attributed to their defence of the Succession Act claim. Their solicitor, who had day-to-day carriage of the matter from late 2023 through to the conclusion of the hearing, has sworn an affidavit in which he states that the vast majority of the defendants’ costs of the proceedings (more than 95%) were incurred in defending against the plaintiffs’ assertions as to promises made to them in respect of obtaining the farm and that less than 5% (and likely less than 2-3%) of their costs were incurred in contesting the plaintiffs’ financial circumstances. The defendants point out that this estimate accords with the reality of how the final hearing was conducted. The plaintiffs in fact made no submissions on the relief sought in their claims until specifically invited to do so by me in closing oral submissions. Even then, the submission put by reference to the claim was effectively a reprise of the proprietary estoppel claim.

What costs orders should be made in relation to James?

20. James was wholly unsuccessful in the proceedings. The starting point is that he should pay the defendants’ costs of defending his claims: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

21. Although James and Hannah are brother and sister and although their claims were brought against the same defendants as executors of the estate of their late father, Wayne, in relation to alleged promises made by him, their claims were distinct. They did not necessarily rise or fall together. So far as concerned their cases based on proprietary estoppel, each plaintiff relied on distinct representations, only some of which overlapped. Each claimed to have relied on the representations in different ways and each claimed to have suffered detriment in different ways.

22. The defendants have not sought to show that their costs were incurred in relation to Hannah and James in different proportions. It is reasonable in these circumstances to treat their costs as having been incurred in relation to each of the plaintiffs more or less equally: see Chen v Chan (No 2) [2009] VSCA 233 at [10(5)-(6)]. That being so, I accept James’s submission that the starting point is that he should be ordered to pay half of the defendants’ costs, not all of them.

23. The question of whether he should be ordered to bear the costs of his unsuccessful Succession Act claim is more complicated. As to the costs of his Succession Act claim, it may sometimes be relevant to have regard to the impact of a costs order on the financial circumstances of the plaintiff. In McDougall v Rogers*; Estate of James Rogers* [2006] NSWSC 484, Brereton J said at [57]:

“The court may allow an unsuccessful plaintiff costs out of the estate, if in all the circumstances the case was meritorious and reasonable, for example where a claim by an adult son for provision failed for want of establishing need, despite a substantial contribution or expectation basis for some testamentary benefit. Or the court may decline to make an order for costs against an unsuccessful plaintiff, leaving the parties to bear their own costs. As proceedings for family provision are essentially for maintenance, a court may properly decide to make no order for costs, even though it were otherwise justified, against an unsuccessful applicant, if it would adversely affect a financial position which had been taken into account in dismissing the application.” (in-text citations omitted)

24. In that case, his Honour noted that the failed plaintiff’s financial position was ‘fragile’: at [59]. His Honour continued:

“In dismissing his application, I have taken into account that he is able to support himself. But he has no capacity to meet an adverse costs order, which would leave him in a truly necessitous, if not desperate, position, and would falsify one basis of my decision, that he is able to support himself. This is a case in which the balance of justice between the parties, having regard to the detrimental impact on Jamie’s position which an adverse costs order would have, his status as a child of the deceased, the absence of any provision for him in the will, and the circumstance that his claim, though unsuccessful, was not unreasonably brought, justifies a decision not to make an order for costs against him.”

25. James’s circumstances are somewhat different. Although I noted that he was about breaking even in terms of his cashflow, his circumstances can hardly be described as fragile. He has a good income, has no dependents, owns an investment property, can contribute to superannuation (albeit not at the rate of $5,000 per month) and is able to take multiple domestic holidays and an international holiday each year. He has already been left with a legacy of $600,000 from the will, and his claim for further provision was for a transfer of part of the farm or otherwise for a sum of money to fund the purchase of a rural property on which to begin farming in his own right. Like Hannah, James did not raise any intermediate position in the alternative for provision in an amount sufficient to meet his day-to-day financial needs.

26. Further and in any event, I do not accept that it is appropriate to apportion costs between the estoppel case and the Succession Act case in the way he suggests. The evidence of the defendants’ solicitor accords with my own experience of the trial, which was that the evidence and submissions, both written and oral, were overwhelmingly concerned with the proprietary estoppel claims.

27. It is relevant that the estate also cannot afford to bear the costs of James’s failed Succession Act claim. Practically speaking, those costs will be borne by Abe personally to the extent they are not recouped from James.

28. In James’s case, I consider that the ‘overall justice’ of the case is not remote from following the usual rule that costs follow the event: Jvanich v Kennedy (No 2) [2004] NSWCA 397 at [11] (Giles JA, Handley and McColl JJA agreeing). In my view, it is appropriate to order James to pay 50% of the defendants’ costs.

What costs order should be made in relation to Hannah?

29. While it is true that Hannah was successful in the proceedings, Hannah’s success needs to be seen in perspective. Although I found that it was appropriate to make a family provision order in her favour, the order I made was in an amount that was only 7.5% of what she was seeking. That order reflected what I considered to be her financial needs – it did not reflect the case she advanced, which was that she needed a sum sufficient to acquire a substantial rural property.

30. The defendants say that the matters which ultimately supported my conclusion in relation to Hannah’s Succession Act claim were matters about which there was never any serious dispute. They submit that they never sought to contradict her evidence about her current financial position. They point out that they made an offer to resolve the proceedings shortly prior to the hearing that was for more than the amount awarded which, they say, supports their submission that they did not dispute Hannah’s entitlement to receive a sum by way of further provision broadly in the amount awarded.

31. In their written reply submissions on costs, the defendants said:

“The correct characterisation of the present case is that Hannah lost her entire case in substance … [She] lost on her estoppel claim, lost on the family provision claim that she advanced on the basis of Wayne’s representations which were said to entitle her to enough further provision to buy herself a farming property, and only succeeded on an uncontroversial point which was not challenged by the defendants (being her modest financial circumstances). Hannah should pay the defendants’ costs.”

32. These submissions take matters too far. It is true that the defendants did not seek to contradict Hannah’s evidence about her financial position, but their primary stance throughout the hearing was that she should receive nothing by way of further provision at all. Her entitlement to further provision in the sum I ordered was not ‘uncontroversial’, as they now submit. The defendants did submit in response to a question from me that if there were to be any order for provision it should be in an amount far smaller than Hannah was seeking, but they at no point conceded that such an order should be made. The fact that they made a without prejudice offer to settle her overall claim for $500,000 (with the parties to pay their own costs) does not, in my view, have any bearing on the matter. Unless Hannah’s rejection of that offer was unreasonable – which the defendants do not assert – it takes matters nowhere.

33. Even so, the matters to which I referred in paragraph [29] are significant. So too is the fact that the defendants did not dispute the evidentiary underpinnings of my findings in relation to Hannah’s Succession Act claim.

34. It is necessary in these circumstances to balance competing considerations. Hannah has been partly successful and should not lightly be denied her costs: Harris v Morabito Holdings Pty Ltd [2018] NSWSC 1353 at [18]-[19] (McDougall J). It is also relevant to keep in mind the principles in relation to costs in family provision claims, which I set out at paragraphs [11] and [23] above. At the same time, the defendants have been overwhelmingly successful in a practical sense. Measured against the case actually developed in final submissions by Hannah at the hearing, they were almost entirely successful. It is unreal to suppose that half of Hannah’s costs are fairly attributable to the case on which she succeeded.

35. The parties have approached the costs issue on the basis that it is preferable to avoid any attempt to award and assess costs by reference to particular issues. I agree, and note what Beazley, McColl and Basten JJA said on this issue in Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [6]-[7].

36. In my view, there should be no costs order in relation to Hannah’s claim. Although she has succeeded in obtaining judgment in her favour, this is a case in which it is appropriate to depart from the rule in r 42.1. It is not very far removed from those cases in which successful plaintiffs have been ordered to pay all or part of a defendant’s costs: Cretazzo v Lombardi (1975) 13 SASR 4 at 12 (Bray CJ, Zelling and Jacobs JJ agreeing); Hughes v WA Cricket Association (Inc) [1986] FCA 511; (1986) ATPR 40-748 at 48,136 (Toohey J). Hannah’s estoppel claim was wholly unsuccessful and took up the vast majority of the time at hearing dedicated to her claims. To the extent that the defendants were put to expense in contesting her claim, their costs were almost entirely directed to contesting her claim that she had a financial need for funds to purchase a rural property, which I did not accept. However, be all of that as it may, Hannah has been successful in demonstrating a modest entitlement that was never conceded by the defendants: [2007] NSWSC 37 at [96] (Brereton J). Appropriate weight must be given to that fact.

ORDERS

37. The orders of the Court will be as follows:

38. The first plaintiff is to pay half of the defendants’ costs on the ordinary basis.

39. There is no order as to the parties’ costs in relation to the claims by the second plaintiff, with the intent that each party is to pay his and her own costs of those claims.

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