//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2012] QSC 24
Supreme Court of Queensland
2012-01-23
McMeekin J
Original judgment source is linked above.
[15] It is necessary to refer to factors (d), (e), (g) and (h). Before doing so I note two matters. The submission made at the hearing was that the applicant be awarded between 75% and 100% of the estate - an award of in excess of $2M. Secondly, the offer made by the respondent was that the estate pay to the applicant $175,000 plus costs on an indemnity basis and was made on 2 June 2010 following an unsuccessful mediation.
[16] My response to the applicant's submissions is:
(a) To say that the claim "was proper and reasonably brought" is, on my findings, simply wrong. I have some considerable difficulty classifying this case as a borderline one. It was not based on any "moral claim or obligation" as envisaged in Bowyer v Woods [2007] SASC 327. Further, this was not a case involving difficult findings of facts on contested material - the facts were well known to both parties and largely not in dispute. What dispute there was largely centred on the applicant's claim to have reformed the relationship with his father at a time when the uncontested medical evidence was that his father was in an advanced state of senile dementia and unable to form relationships;
(b) In addition to the lack of "need" there were other important factors - the testator and the applicant were estranged. The applicant had pursued the testator with litigation which the testator considered - and not without some cause - to be unmeritorious. Whatever be the merits at that time, the effect of the testator's actions then was that the applicant was treated generously when he was young and plainly on the understanding of both that the applicant's claims on his father were at an end. Finally Ross' competing claim on the deceased's bounty was far superior to the applicant's; [5]
(c) The offer was a commercial one - it no doubt was reached after considering the likely costs of resisting the claim. It was a timely offer made some 18 months before trial. It showed good judgment. To reject the offer was imprudent;
(d) The facts here are not so unusual. The need to seek a sanction of any compromise where there are only two competing potential beneficiaries who are in agreement hardly compares to the costs involved in a contested hearing with a significant amount of affidavit material;
(e) The applicant had a very unrealistic view of his entitlements.
[17] Whilst an award of costs against the applicant will not be welcomed by him it is not shown that such an order would prove significantly adverse to his financial position.
[18] There is nothing in the relationship between the testator and the applicant or the applicant's conduct towards the testator that would put this case in any special category. If anything, what factors there are go against the applicant.
[19] I note that none of the factors mentioned by Atkin LJ in Ritter v Godfrey [1920] 2 KB 47 apply to the respondent executor here. And far from doing some wrongful act he attempted to save substantial costs by making a timely and well judged offer. Murray J's observations in Dobb v Hacket (1993) 10 WAR 532 concerning the relevance of such offers are pertinent.
[20] The general rule is that costs follow the event. I cannot identify any cogent reason why the overall justice of the case would require some different approach. The making of a reasonable and timely offer makes plain that the estate should not be burdened with additional costs.[6] As Sir J. P Wilde (as Lord Penzance then was) said in Mitchell v Gard (1863) 164 ER 1280 at 1281:
"The basis of all rule on this subject should rest upon the degree of blame to be imputed to the respective parties, and the question, who shall bear the costs? will be answered with this other question, whose fault was it that they were incurred?"
[21] Here it is the applicant's fault that costs have been incurred.
[22] I order that the applicant pay the respondent's costs of and incidental to this proceeding:
(i) on the standard basis up and until 16 June 2010;
[1] Dawson v Joyner [2011] QSC 385
[2] See r681 Uniform Civil Procedure Rules 1999 (Qld)
[3] [1993] HCA 35; (1993) 67 ALJR 708 at 709; [1993] HCA 35
[4] Best treated as "Calderbank offers" (see Calderbank v Calderbank [1996] Fam 93) as explained by Helman J in Kozak v Matthews [2007] QSC 204 - and so the offer is relevant but not decisive
[5] Dawson v Joyner [2011] QSC 385 at [76]
[6] Cf. Barton v Daley [2011] QSC 322 at [35]- [36] per Ann Lyons J citing Mills CJ in Koorneef v Lewkowicz [2001] ACTSC 81
Dawson
Joyner
[5] There has been some discussion in the cases in more recent times that touch on the ongoing applicability of Gaudron J's remarks. In Jvancich v Kennedy (No 2) [2004] NSWCA 397 at [11], Giles JA observed (with Handley JA and McColl JA agreeing) that the "overall justice of the case" is "not remote from costs following the event". In Re Sitch [2005] VSC 383 at [4] Gillard J said:
[6] Whether New South Wales continues to follow the approach explained by Gaudron J was queried but not resolved in Nicholls v Hall [2007] NSWCA 356 where Mason P, Hodgson and McColl JJA said at [57]:
[7] However the continuing authority of Gaudron J's observations seems to have been accepted more recently. In McCusker v Rutter [2010] NSWCA 318 Young JA considered the principles that apply in family provision applications where the plaintiff was wholly unsuccessful (with Campbell and Handley AJA agreeing with the exposition of principles but disagreeing as to the orders):
"[29] The general rule is that "there is no power in the court to make a successful defendant pay the costs of an unsuccessful plaintiff. The reason is obvious: it is the plaintiff who brings the defendant into court." London Welsh Estates Ltd v Phillip (1931) 144 LT 643 applied by the High Court in Hally v Dennis [1955] HCA 41 ; 95 CLR 661 and by this court in Deen v Different Drummer Pty Ltd, 30 March 1978 (BC7800157). Here the order was not that the unsuccessful plaintiff get her costs from the successful defendant, but rather that no order for costs be made. Such cases are not as black and white as the ones I have just referred to, but even so, the authorities show that it is relatively rare that a court should make such an order.
[32] Ritter v Godfrey has been followed on many occasions in this court, see eg Mitropoulos v Greek Orthodox Church (1993) 10 ACSR 134 per M McLelland J and Total & Universal Pty Ltd v Kingsway Property Investments (No 2) Pty Ltd [2007] NSWSC 581 per Campbell JA. See also in the Federal Court Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213 at 220-221 per Fisher J.
[33] A series of decisions at first instance show that there is some more flexibility where there has been an unsuccessful claim made under the Family Provision Act. In Singer v Berghouse [1993] HCA 35; 114 ALR 521, 522 Gaudron J said:
[34] Examples of situations where courts have thought no order should be made against an unsuccessful plaintiff are afforded by Sherborne Estate (No 2) : Vanvalen v Neaves [2005] NSWSC 1003; (2005) 65 NSWLR 268 per Palmer J and Moussa v Moussa [2006] NSWSC 509 per Barrett J. Whilst it is clearer in a case where if an order for costs is made against an unsuccessful plaintiff he or she will instantly become impecunious and so may be able to make a fresh application under the Act so that it is counter-productive to make an order as to costs against such a plaintiff, what Gaudron J said in Singer shows that it is not only in such cases that it may be inappropriate to make an order for costs against an unsuccessful plaintiff under the Act."
[8] How close one gets to the borderline, the nature of the relationship between the testator and the applicant, the basis on which the claim is brought, and the potentially crippling effect of any costs orders particularly where the orders will have minimal effect on the estate have been held to be relevant factors: Sherborne Estate (supra) per Palmer J; Coombes v Ward (No 2) [2002] VSC 84; Reddie v Cornock [2005] NSWSC 187.
[10] In Bowyer v Woods [2007] SASC 327 Debelle J (Nyland and Anderson JJ agreeing) undertook an examination of cases which led the Full Court of South Australia to conclude (at [68]):
[11] After reviewing these decisions Jones J concluded in Underwood v Underwood [2009] QSC 107:
(1993) 10 WAR 532
(2005) 65 NSWLR 268
(1993) 67 ALJR 708
(1979) 42 FLR 213