Reasons for judgment were delivered by the Court on 29 June 2018 on a notice of motion filed by the applicant, Mr Robert Angius, on 3 April 2018 in these proceedings: Gianna (Jenny) Angius v Gordon Albert Salier [2018] NSWSC 995.
As was the case with the primary judgment, with no disrespect to the members of the Angius family, I will refer to them by their first names.
In these proceedings, Jenny seeks family provision orders under s 59 of the Succession Act 2006 (NSW) against Mr Salier, who is the administrator of the estate of Jenny's deceased mother, Laura Angius.
Robert is Jenny's brother and the deceased's son, and is not a party to these proceedings.
By his notice of motion, Robert sought the following orders:
1. An order that Robert Angius be joined as Second Defendant to the proceedings under Part 6 rule 24 of the Uniform Civil Procedure Rules 2005 (NSW), on condition that:
• he would be at risk as to his own costs in that he would pay his own cost of the proceedings unless the Court otherwise ordered; and
• unless leave of the Court is granted, the cross examination by his Counsel would be limited to areas not otherwise covered by Senior Counsel for the Defendant, Mr Salier.
2. An order that an interim distribution of $1,000,000 be paid from the cash amount held by the administrator to the Applicant, or such other amount as the Court determines in its discretion, pursuant to Part 54 rule 3(3)(d) or (4)(b) of the Uniform Civil Procedure Rules 2005 (NSW) and/or s 84 of the Wills Probate and Administration Act 1898 [in fact the Probate and Administration Act 1898 (NSW)].
3. That the costs of this Motion be otherwise costs in the cause.
The parties to the notice of motion filed by Robert were Robert, Jenny and Mr Salier. These reasons deal with the costs order that should be made in relation to the notice of motion. The Court has received written submissions from each of the parties to the notice of motion.
While the parties other than Robert did not specifically rely upon the fact, it is to be noted that in his notice of motion Robert sought an order that, if the orders claimed by him were made by the Court, the costs of the motion should be costs in the cause.
For the reasons set out in the primary judgment, the Court made the following orders:
(1) The Court declines at this time to make the orders sought in par 1 of the notice of motion filed by Robert Angius on 3 April 2018.
(2) Grant leave to Robert Angius to renew his application for the relief sought in par 1 of his notice of motion filed on 3 April 2018.
(3) Order that an interim distribution of $1 million be paid out of the estate of the late Laura Angius from the cash amount held by the administrator, Mr Gordon Albert Salier, to the applicant, Robert Angius.
It will be convenient to deal first with the position adopted by Mr Salier. He seeks an order that his own costs of the notice of motion be paid out of Laura's estate on the indemnity basis. Robert expressly accepted that this order should be made, and I do not understand Jenny to have opposed it.
Mr Salier was naturally a party to Robert's notice of motion, as he is the administrator of the estate and the first defendant to the proceedings. Mr Salier provided evidence to the Court that was necessary to enable the Court to deal with the notice of motion, particularly Robert's claim for an interim distribution. Mr Salier's involvement gave the Court the confidence that facilitated the making of order 3. Furthermore, Mr Salier's involvement in the notice of motion was efficient, and although he is not personally interested, he effectively succeeded in so far as he resisted Robert's application to be joined as a party to the proceedings at this stage, and at the hearing he did not oppose the making of the interim distribution.
Consequently, I will make the costs order in favour of Mr Salier that he seeks.
Robert's position is that, although he has failed to obtain an order that he be joined as a party to the proceedings, that application has not finally been dismissed by the Court. Robert will be permitted to renew his application, if he is so advised, closer to the hearing if and when a basis for his joinder emerges more clearly. Robert has succeeded on his application for an interim distribution from the deceased's estate. Robert's primary submission is that, in these circumstances, Jenny should be ordered to pay 50% of Robert's costs of the notice of motion (I assume on the ordinary basis). Robert's alternative position is that there should be no order as to the costs of the notice of motion, in that each party should bear their own costs.
In her submissions, Jenny deals with Robert's application to be joined and his application for an interim distribution separately.
She submits that, as Robert failed in his application to be joined, he should be ordered to pay Jenny's costs in respect of the order sought in par 1 of the notice of motion on the ordinary basis. Alternatively, that aspect of Jenny's costs should be her costs in the cause.
In relation to Robert's application for an interim distribution, Jenny adopts the position that initially Mr Salier opposed the application, as did Jenny. The motion had to be heard because Mr Salier did not agree to the interim distribution or the amount that should be distributed. (It should be noted that Mr Salier, as the independent administrator, could hardly have done so without the protection of an order of the Court). Jenny submits that it was not unreasonable for her to have sought to test some of the evidence put forward by Robert in support of his application.
On this basis, Jenny submits that the costs of par 2 of the notice of motion should be paid to her out of the deceased's estate on the ordinary basis. Alternatively, Jenny submits that those costs should be her costs in the cause.
Speaking broadly, each of Robert and Jenny had an equal measure of success on the notice of motion. Robert failed in his application to be joined as a party (albeit not finally), but he succeeded on his application for an interim distribution. Jenny achieved the reverse outcome from her opposition to the notice of motion.
I do not accept that Jenny's opposition to Robert's application for an interim distribution was reasonable, given the circumstances set out in the primary judgment, but on the other hand, Robert's application to be joined as a party after an earlier application to that effect had been dismissed by the Court could also hardly be described as reasonable.
It is not appropriate that the costs of either Robert or Jenny be paid out of the deceased's estate. As will appear from a consideration of the primary judgment, it is almost certain that any costs paid out of the estate will ultimately come from Robert's share of the estate. Consequently, an order that Robert's costs be paid out of the estate will be a payment from his own money, and the same will be true in relation to any of Jenny's costs that are ordered to be paid out of the estate, in that those costs will also be paid out of Robert's money.
An order in respect of Robert's and Jenny's costs of the notice of motion that those costs be their costs in the cause may have been attractive were it not for the nature of the present proceedings, which would give rise to practical problems if such an order were made.
Robert is not a party to the proceedings, and may never be joined as a party, so that even if Jenny fails entirely in her application for family provision orders, and is ordered to pay the costs of the proceedings, there may be no order in favour of Robert. It may be that in no event will Robert be entitled to costs of the cause.
On the other hand, the nature of the present proceedings is not such that Jenny will either win or lose (and, as follows from the preceding paragraph, that if Jenny wins, Robert will lose, or vice versa). Jenny's counsel indicated during the course of argument on the notice of motion that in broad terms Jenny was seeking a family provision order valued at approximately 20% of the deceased's net estate. That is an amount that on any view of the value of Laura's estate would be measured in the millions of dollars. Jenny may fail in the proceedings, but even if she succeeds, she may be awarded a family provision order that could be regarded as trivial in comparison to the order that Jenny seeks. Thus, Jenny could succeed, but on a basis that both she and third parties would consider to be a failure in real terms.
Consequently, as these proceedings consist of a claim for family provision orders in respect of which Robert is not a party, I do not consider that an order in respect of Robert's and Jenny's costs of the notice of motion as being either party's costs in the cause will be appropriate.
As in broad terms both Robert and Jenny achieved equal measures of success and failure, the appropriate order is that there be no order in either of their favour on the notice of motion, with the intent that each will bear their own costs.
I make the following additional orders in respect of Robert's notice of motion filed on 3 April 2018:
1. Order that the costs of Gordon Albert Salier, as administrator of the estate of the late Laura Angius, of the notice of motion filed by Robert Angius on 3 April 2018 be paid out of the estate on the indemnity basis.
2. Order that no order for costs be made in favour of or against Robert Angius and Gianna (Jenny) Angius of the notice of motion filed by Robert Angius on 3 April 2018, with the intent that each of those parties will bear their own costs of the notice of motion.
As I understand it, these proceedings have not been listed in the Family Provision List pending the determination of Robert's notice of motion. At a directions hearing some time ago I offered to the parties to list the proceedings in the Family Provision List for further directions while the parties were waiting for my determination of the costs dispute. I was not asked to make that listing, but it is necessary that I do so now. Accordingly, I make the following additional order:
(3) Stand the proceedings into the Family Provision List on Friday 5 October 2018 for directions.
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Decision last updated: 28 September 2018