GROVE -v- GROVE [2022] WASCA 86 (25 July 2022)

In the course of drafting my client's defence to the amended statement of claim yesterday afternoon, my client alerted me to the fact that he had come across a file of documents kept by William relating, inter alia, to his dealings with Margaret's estate.

At my request, that file was delivered to me for my inspection earlier this afternoon. Included in it was the original of a handwritten 'will kit' form will dated 8 October 1976 which appears to me to bear Margaret's signature and to have been properly witnessed by B E Lynn and E Lynn (the 1976 will). On its face at least, it therefore appears to be a valid will executed after the 1975 will. I will attach a copy of the 1976 will to my covering email.

...

As you will note, by the 1976 will Margaret expressly revokes all earlier wills and leaves 'all her property whatsoever both real and personal to her husband William Grove absolutely'.[4] (original emphasis)

1. Andrew's solicitor observed that there were a number of documents that suggested that an application had been made for a grant of probate of the 1976 will. Andrew's solicitor also observed, presciently, that these matters put 'an entirely different complexion on the Action and may mean that [John] will have to reconsider whether he wishes to continue it'.[5] As Andrew's solicitor stated:

If the 1976 Will is valid, the entirety of Margaret's estate would, of course, have passed to William and neither your client nor any of Margaret's children would have been entitled to any distributions from it. If there has already been a grant of probate then the Action would be redundant.[6]

1. The 1976 will was not discovered by Andrew. Nor was it referred to in pre-litigation correspondence between the parties' solicitors. In this respect, by letters dated 5 February 2020[7] and 10 March 2020,[8] John's solicitor asserted that Margaret's last will was the 1975 instrument. In answering that correspondence neither Simon's solicitor nor Andrew's solicitor referred to the 1976 will.
2. John satisfied himself that the 1976 will was a valid testamentary disposition. He concluded, correctly, that the action as framed could not succeed. John's solicitor then approached Simon's and Andrew's respective solicitors proposing that the action be discontinued, all existing costs orders be discharged and there be no order as to costs. That offer was rejected. Faced with that position John brought an application seeking leave to discontinue on terms that the defendants - both Simon and Andrew - pay his costs of the action.

1. Before the master it was common ground that John should have leave to discontinue. The dispute was confined to costs. John said that he had acted reasonably, having no reason to believe that the 1975 will was not Margaret's last will and moving to discontinue promptly after discovering that was not the case. Simon and Andrew sought to answer that by saying that the action was hopeless from the start. While this submission had two aspects, for the purposes of the appeal it is enough to mention one. It was contended that John could not have succeeded in establishing that there was a debt owed to Margaret's estate in the amount of $54,600 or any other amount.
2. In a finding that is unchallenged on appeal, the master held that it was not possible, or appropriate, to determine whether John's action based on the 1975 will might have succeeded - observing that he certainly could not conclude that John's claim was bound to fail.[9]
3. The master then determined that the proper order as to the costs of the action was that all existing costs orders be vacated, and Andrew pay John's costs of the action including reserved costs, for the following reasons:

The root cause of all these problems is the failure of [Andrew] to identify the 1976 will as the relevant testamentary document. His solicitor's letter indicates the will was in his possession. He had provided discovery and had made no mention of the 1976 will. In the circumstances, I am satisfied it was the actions of [Andrew] which led to these proceedings being initiated and pursued by [John]. If the 1976 will had been brought to [John's] attention, proceedings may not have been issued. That is confirmed by the fact that as soon as the 1976 will was produced [John] took steps to abandon these proceedings.[10]

1. The parties contended that several implicit findings should be drawn from this passage.
2. Andrew contended that, although not expressly stated, the master found that:
   1. Andrew was in possession of the 1976 will at all material times (ie immediately prior to the commencement of the proceedings and at the time of giving discovery) but did not say anything about it.[11]
   2. Andrew's failure to identify the 1976 will prior to the commencement of the proceedings, and in giving discovery, constituted misconduct or unreasonable conduct on Andrew's part which unnecessarily caused the proceedings to be commenced and maintained.[12]
3. However, Andrew denied that the master made any implicit finding to the effect that he (ie Andrew) was aware of (in the sense of having actual knowledge of) the 1976 will prior to the commencement of the proceedings or at the time of giving discovery.[13] In this respect Andrew distinguished between his alleged possession of the 1976 will (which, on his case, was the subject of an implicit finding) and his alleged knowledge or awareness of the 1976 will (which was not).
4. John also contended that the master implicitly held that the 1976 will was in Andrew's possession at all material times.[14] There was, to this extent, some common ground. The parties both accepted that, while not expressly so stated, the master concluded that Andrew was in possession of the 1976 will immediately prior to the commencement of the proceedings and at the time of giving discovery. We are satisfied that a finding to this effect should be inferred.
5. In construing the master's reasons, it is necessary to read the reasons fairly and as a whole. In the passage of the master's reasons as reproduced at [15] above the master refers to Andrew's solicitor's letter indicating that the 1976 will was in Andrew's possession. The master refers to Andrew making no mention of the 1976 will in giving discovery. The master then says he is satisfied that it was Andrew's actions which 'led to' the proceedings being initiated and pursued by John. Importantly, according to the master, if 'the 1976 will had been brought to [John's] attention, proceedings may not have issued'. That necessarily pre-supposes that the 1976 will was in Andrew's possession immediately prior to commencement of the proceedings. The commencement and pursuit of the proceedings could not be attributable to Andrew (as found by the master) unless it was the case that the 1976 will was in Andrew's possession at the time of commencement. And if the 1976 will was in Andrew's possession immediately before the commencement of the proceedings so too it must have been in Andrew's possession at the time when discovery was given.
6. In referring, as we have, to 'possession', we are echoing the language used by the master and the parties. We are not using the term 'possession' in a strict legal sense but rather in the sense that there was possession where a person held or had access to the relevant document. This, in our view, is what was intended by the master - that conclusion arising from the use of the term 'possession' in the context of what was stated in Andrew's solicitor's letter dated 11 November 2020. References to 'possession' in these reasons should be understood in this broader sense.
7. We are also satisfied that the master found, implicitly rather than in terms, that by this conduct Andrew acted so unreasonably as to justify an award of costs against him in favour of John as a discontinuing plaintiff. That is the effect of the passage as reproduced at [15] above read with the following paragraph of the prima[15] reasons,15 in which the master nominates the proper costs orders to give effect to his findings.
8. As we have mentioned, it was not part of Andrew's case on appeal that the master made an implicit finding to the effect that at all material times he (ie Andrew) was aware of the existence of the 1976 will (see [18] above). Nor, in our opinion, is such a finding to be inferred from the master's reasons. The master's reasons, read fairly and as a whole, do not descend into an examination of Andrew's state of mind concerning the 1976 will. The master addressed the fact of possession of the file of documents kept by William relating to Margaret's estate (such documents including the 1976 will) but not whether Andrew had an actual appreciation that the file contained the 1976 will.
9. This understanding of the master's reasons is supported by the relevant context. In argument before the master John did not contend that Andrew was aware of the 1976 will prior to commencement of the proceedings or at the time that he gave discovery. To the contrary, John contended that Andrew's actions were unreasonable because Andrew failed to take 'routine steps' to locate and produce the 1976 will following receipt of John's solicitor's pre-litigation correspondence informing Andrew of John's intention to apply for letters of administration of the 1975 will.[16] Similarly, in the course of argument the master focused on who had possession of the 1976 will (contrasting the position of Andrew and Simon)[17] and what would have happened had Andrew undertaken proper investigations as to the documents in his possession.[18]
10. Finally as to the master's reasons, as between Simon and Andrew, the master noted that he had asked counsel for Simon whether Simon sought costs against Andrew. Simon did not seek costs against Andrew. Accordingly, so far as Simon was concerned, there was to be no order as to costs. However, had counsel for Simon sought costs against Andrew, the master would have made an order to that effect.[19]

1. Andrew applies for leave to appeal the master's costs determination.[20] John takes part in the appeal, opposing the grant of leave and the appeal. Simon does not take part in the appeal, having filed a notice of intention to abide by any order made by the court, save as to costs.
2. There are two proposed grounds of appeal.
3. By ground 1 as amended,[21] Andrew alleges that the master erred in fact and in law in holding him (ie Andrew) liable for John's costs of the primary proceedings. Andrew contends that in all the circumstances there was no misconduct or unreasonable conduct on his part to warrant the making of the costs order against him in the terms made or at all, saying that:
   1. there was no evidentiary basis to find that the 1976 will was in his possession, or that he was aware of its existence, prior to the commencement of the proceedings or at the time of giving discovery;
   2. he was not required to give discovery of the 1976 will as it did not relate to an issue in dispute in the proceedings;
   3. he had no obligation to ascertain the existence of the 1976 will or to investigate whether it existed (not having been appointed as Margaret's executor under the 1975 will or the 1976 will); and
   4. at no material time was he requested to ascertain whether he had in his possession or knew of the existence of any will subsequent to the 1975 will.
4. By ground 2, Andrew alleges that the master erred in fact and in law in holding that John acted reasonably in commencing and maintaining the proceedings and could have taken no steps to ascertain whether there was a later will. Andrew contends that the master ought to have held that the commencement and maintenance of the proceedings constituted unreasonable conduct on John's part requiring that he pay Andrew's costs, saying that:
   1. prior to commencing the proceedings, it was incumbent on John to satisfy himself that the 1975 will was Margaret's last will;
   2. at no material time did John request that Simon or Andrew inform him whether Margaret had executed a will subsequent to the 1975 will;
   3. there were no assets forming part of the BE Lynn Trust or Margaret's estate so as to require the appointment of an administrator; and
   4. a proposal contained in Andrew's solicitor's letter dated 1 April 2020 sent prior to the commencement of the proceedings (see [84] below) constituted a reasonable basis on which any undistributed assets in the BE Lynn Trust could have been distributed without the requirement to appoint an administrator.
5. A number of the contentions in support of ground 2 fell away in the course of the appeal hearing (see [86] - [89] below).
6. At the appeal hearing, counsel for Andrew explained that grounds 1 and 2 were directed to different targets. Ground 1, if solely successful, would - in Andrew's submission - give rise to an order that there be no order as to costs in respect of the action. If, however, Andrew succeeded on grounds 1 and 2, he contended that the proper order would be that John pay Andrew's costs of the action.[22]
7. Andrew seeks orders setting aside the master's costs orders. In substitution thereof Andrew seeks orders that John pay his (ie Andrew's) costs of the primary proceedings including any reserved costs (this assuming success on grounds 1 and 2). In the alternative, Andrew seeks an order that there be no order as to costs in respect of the primary proceedings (this assuming success on ground 1 only).

Applicable principles as to appellate review of costs orders

1. An appeal against a discretionary costs order requires leave to appeal.[23] The costs of and incidental to all proceedings in the Supreme Court are in the discretion of the court.[24] It is, however, well understood that the costs discretion is not unfettered insofar as it is a discretion which must be exercised judicially.[25]
2. Andrew's appellant's case acknowledged the necessity to obtain leave to appeal.[26] But, in seeking leave, Andrew did no more than rely on his submissions in support of grounds 1 and 2.[27] That is inadequate. In this context, as elsewhere,[28] the requirement for leave to appeal is no mere technicality or procedural nicety; it serves an important function in the administration of justice by discouraging unnecessary appeals. The gateway requirement of leave is particularly important in the context of a litigant seeking to appeal a costs order. Satellite litigation as to costs should not be allowed to assume a life of its own, disproportionate to its significance. It is in the interests of the parties and the public that disputes as to costs be resolved as quickly, efficiently and inexpensively as possible.[29]
3. It is seldom in the interests of justice, nor consistent with the goal and objects enshrined in O 1 rr 4A and 4B of the Rules of the Supreme Court 1971 (WA) (RSC), that a litigant be permitted to challenge a discretionary costs order. Thus, ordinarily as a matter of fact, a grant of leave to appeal on a costs issue is rare.[30]
4. Similarly, an appellate court will not, without strong reasons, interfere with an exercise of discretion on a question of costs. It is necessary to demonstrate manifest error or that the order stands outside the limits of a sound discretionary judgment.[31] By 'manifest error' what must be shown is that the primary court made an error in principle or acted on a manifestly erroneous view of the facts or that the order is manifestly unreasonable.[32] The appellant must meet the standard of discretionary error established in House v The King.[33]
5. On an appeal of this type an appellate court is not entitled to substitute its own decision for that of the primary court merely because the appellate court prefers a different result or considers that a different result would be more just and equitable. The test is not whether the Court of Appeal would have made the same order but whether there is a ground on which the primary court's order could reasonably be made.[34] Accordingly, as has been said in the Court of Appeal of Victoria:

It is extraordinarily difficult to show that a court of first instance or a tribunal with wide discretionary powers has erred in the exercise of its powers to award costs, if there be some basis for making an order other than the conventional order in favour of the successful party.[35]

Disposition ground 1 - Contention that no misconduct or unreasonable conduct on Andrew's part The nature of the issue presented by ground 1

1. Ground 1 was notionally in two parts. First, Andrew contended that the master erred in holding him liable for John's costs. Second, Andrew contended that there was no misconduct or unreasonable conduct on his part to warrant the making of adverse costs orders against him. The first contention, in substance, relied on Andrew sustaining the second contention. Accordingly, ground 1 is best approached by considering whether the master was in error in failing to find that there was no misconduct or unreasonable conduct on Andrew's part to warrant a costs order being made against him - or, put positively, whether the master erred in finding that there was misconduct or unreasonable conduct on Andrew's part to warrant a costs order being made against him.
2. The reference to there being no 'misconduct or unreasonable conduct' is explicable in a context where John was seeking to discontinue.
3. Defences having been filed by Simon and Andrew, O 23 r 2(3) RSC required that John have leave of the court to discontinue. Order 23 r 2(3) RSC empowered the court to order that the action be discontinued on such terms as to costs, and otherwise, as may be just. The terms of O 23 r 2(3) RSC are wide enough to empower the court to make any costs order which is required by the justice of the case. The conduct of the parties, and the reason for the wish to discontinue, will bear heavily on the exercise of the discretion.
4. While, ordinarily, a successful party is entitled to an order for its costs, that general rule as to costs following the event is based on the identification of a successful party by a hearing on the merits. Where a matter resolves without a determination on the merits the court is deprived of the factor that will usually determine how the discretion as to costs is to be exercised. The court will not try a hypothetical action between the parties. However, in some cases the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the litigation. Alternatively, in a rare case, the court may feel confident that although both parties have acted reasonably, one party was almost certain to have succeeded if the matter was tried (for example, the court may be satisfied that one party capitulated in the face of probable defeat). But, if it appears that both parties acted reasonably in commencing and defending the proceedings and their conduct continued to be reasonable until the litigation was resolved or its further prosecution became futile, the proper exercise of the costs discretion will usually mean that the court will make no order as to the costs of the proceedings.[36]
5. In the present case the relevant question was whether Andrew had acted 'so unreasonably' that John should obtain the costs of the action.[37]
6. Andrew referred to several authorities in support of his contention that he had not acted unreasonably.[38] It is not necessary to traverse the facts and outcomes in the various cases referred to by Andrew. Each is an illustration of the underlying principles we have referred to above. The authorities relied on distil, at bottom, into a consideration of whether the plaintiff acted reasonably in commencing the proceedings and whether the defendant acted reasonably in defending them.

1. In propounding ground 1, Andrew characterised the master as having found that he (ie Andrew) was guilty of misconduct or unreasonable conduct in failing to identify the 1976 will before the commencement of the proceedings or in giving discovery - and that such misconduct or unreasonable conduct unnecessarily caused the proceedings to be commenced and maintained.[39]
2. In support of ground 1, Andrew submitted that he was not guilty of any unreasonable conduct.[40] Conformably with the various sub-parts to ground 1 (see [28.1] - [28.4] above), Andrew argued that:
   1. The master erred in finding that he (ie Andrew) had engaged in unreasonable conduct in not disclosing the 1976 will prior to the commencement of proceedings, or within the discovery process, as there was no evidentiary basis for the finding that the will was in Andrew's possession (or, moreover, for finding that Andrew was aware of the 1976 will at the material times).[41]
   2. There was no dispute on the pleadings as to whether the 1975 will was Margaret's last will - meaning that the 1976 will was not discoverable and Andrew was not required to search for and make disclosure of the 1976 will.[42]
   3. There was no obligation on Andrew's part to ascertain whether there was a later will than the 1975 will.[43] To the contrary, it was for John to make appropriate inquiries in that regard.[44]
   4. In the pre-litigation correspondence sent on John's behalf there was no request that Andrew inform John whether the 1975 will was Margaret's last will.[45]
3. Some of these contentions should be put aside at once. First, as to [45.2] above, the non-discovery of the 1976 will is a secondary matter which cannot be dispositive of the appeal. The master awarded John the costs of the proceedings from their commencement rather than from the point that discovery was given. Accordingly, the costs order is to be justified by reference to Andrew's alleged failure to speak up about the 1976 will pre-commencement rather than his failure to discover the 1976 will. In short, the characterisation of Andrew's conduct as being 'so unreasonable' as to justify the adverse costs order made by the master is dependent on the state of affairs pre-commencement rather than any failure in the discovery context.
4. Second, as to [45.4] above, it is true that there was no express request on John's behalf that Andrew confirm that the 1975 will was Margaret's last will. However, John's solicitor sent a detailed pre‑litigation letter to Andrew's solicitor in which, among other things, it was asserted that Margaret's last will was the 1975 instrument and that probate was nev[46] granted.46 The letter requested that Andrew inform John whether Andrew had any objection to John making application for letters of administration with the will annexed in respect of Margaret's estate; and, [47] so, why.47
5. It is self-evident that there was no basis for John's proposed action if the 1975 will was not Margaret's last will. That is all the more so if there was a later will in respect of which probate had been granted. Inferentially, by requesting that Andrew inform him of any objection to his proposed course of action, John did request that Andrew inform him of matters which would be relied on in answer to the proposed application - and in that sense it is to be understood that John adequately raised for Andrew's consideration whether there was any dispute about the 1975 will being Margaret's last will.
6. Third, as to [45.3] above, Andrew's insistence that it was for John to make appropriate inquiries overlooks the master's implicit finding that the 1976 will was in his (ie Andrew's) possession pre‑commencement of the proceedings. Andrew did not suggest what further steps ought reasonably to have been taken by John in those circumstances. No such steps are apparent. It is only if the 1976 will was not in Andrew's possession that the failure to identify it as a will later in time to Margaret's 1975 will could potentially be attributable to some unreasonable failure on John's part. Accordingly, this contention inevitably redirects to require examination of Andrew's primary contention, namely, that there was no evidentiary basis for the master's finding that the 1976 will was in Andrew's possession pre‑commencement.
7. In any event, John did take reasonable steps to satisfy himself as to the position insofar as:
   1. John's solicitor sent the pre-litigation correspondence to Simon and Andrew and thereby raised for their consideration whether the 1975 will was Margaret's last will (see [11] and [47] - [48] above).
   2. John's solicitor conducted searches at the Probate Registry of the Supreme Court to determine whether probate or letters of administration had been granted in relation to Margaret's estate. John, by his solicitor, was informed that a search of the court's records failed to reveal any record of an application being made in relation to Margaret's estate.[48]
8. Finally, Andrew again overlooks the material fact in issue insofar as he says that he had no obligation to investigate or ascertain the existence of the 1976 will. It is one thing for Andrew to say he was under no obligation to investigate the position if he was not in possession of the 1976 will. It is quite another if - as the master found to be the case - Andrew was in possession of the 1976 will by reason of having the file of documents kept by William relating to Margaret's estate. If, as the master found, Andrew had possession of the 1976 will, the proceedings may have been averted had Andrew taken the obvious step of providing the file of relevant documents to his solicitor on receipt of John's solicitor's pre-litigation letter in March 2020 (as he eventually did in November 2020). In this respect, one is again redirected to examination of Andrew's primary contention that there was no evidentiary basis for the master's finding that the 1976 will was in Andrew's possession pre-commencement of the litigation.
9. Andrew's contentions as recorded in pars [45.2] - [45.4] above do not sustain ground 1. Nor, for the same reasons, is ground 1 sustained by the sub-parts to ground 1 referred to at [28.2] - [28.4] above.
10. Andrew also contended that John adduced no probative evidence to the effect that he would not have commenced the proceedings had he known about the 1976 will.[49] Putting aside that there was relevant evidence,[50] that submission overlooks what occurred, promptly, when Andrew's solicitor disclosed the 1976 will. So far as, on disclosure of the 1976 will, John moved to discontinue the primary proceedings, there was ample basis for the master's conclusion that the proceedings may not have been issued if the 1976 will had been brought to John's attention. Andrew's submission to the contrary is specious. In any event it exceeds the proper scope of ground 1 and may be put aside on that additional basis as well as failing on its merits.[51]
11. Finally, Andrew contended that the master's finding was insufficient so far as the master found only that proceedings 'may' not have issued if the 1976 will was brought to John's attention. Andrew contended that the master's finding did not establish a basis for causation.[52]
12. Andrew alleged two House v The King discretionary errors in addition to the alleged factual error specified in [45.1] above. First, Andrew said that the master had regard to an irrelevant consideration, namely, that John may not have commenced the proceedings had the 1976 will been brought to his [53]tention.53 Second, Andrew said that in all the circumstances it was plainly unjust for the master to order that Andrew pay John's costs of the pr[54]eedings.54
13. The highpoint of Andrew's submissions in support of the alleged factual error was that Andrew's solicitor's letter dated 11 November 2020 did not disclose when Andrew came to be in possession of the file of documents containing the 1976 will.[55] Andrew submitted that 'no evidence' was adduced that he had the 1976 will in his possession at the material time.[56]
14. John identified that Andrew alleged House v The King discretionary errors of the kind mentioned above.[57] In answer to the alleged errors John submitted that:
    1. There was a proper evidentiary basis for the master to conclude that Andrew engaged in unreasonable conduct in not disclosing the 1976 will prior to the commencement of the proceedings. In particular, in the absence of any plausible explanation to the effect that Andrew suddenly came into possession of the 1976 will shortly before his solicitor's 11 November 2020 letter, it was open to the master to draw the inference that the will was in Andrew's possession at all material times.[58]
    2. The circumstance that the litigation could or would have been avoided by the earlier production of the 1976 will was not an irrelevant consideration.[59]
    3. The master's costs order was within the proper limits of a sound discretionary judgment. In particular, it was open to the master to find that there was unreasonable conduct on the part of Andrew which justified the costs order insofar as Andrew's failure to inform John of the 1976 will both invited and attracted the litigation. To establish that there was unreasonable conduct it sufficed that Andrew was in possession of the 1976 will, even if he was not actually aware of the will and its significance, because the 1976 will was the document that rendered the action futile.[60]

1. Andrew challenged the master's implicit finding that he (ie Andrew) was in possession of the 1976 will at all material times. If this challenge is upheld it would remove the factual foundation for the adverse costs order made against Andrew.
2. There was limited evidence before the master on the point. Andrew did not provide any affidavit evidence going to the circumstances in which he came across the file of documents that contained the 1976 will - or whether, had he sought to identify documents in his possession concerning Margaret's estate on receipt of John's solicitor's pre-litigation correspondence, he would have been able to identify the 1976 will before any litigation was commenced. The direct evidence went no higher than Andrew's solicitor's letter dated 11 November 2020 (see [9] - [10] above). This said no more than that on 10 November 2020 Andrew had informed his solicitor that he had come across a file of documents kept by William relating to his dealings with Margaret's estate.
3. Otherwise, such evidence as there was related to whether it could be inferred that Andrew was aware of the existence of the 1976 will. For example, in his initial defence Andrew admitted that the 1975 will was Margaret's last will; also, Andrew did not give discovery of the 1976 will. These matters strongly suggest that Andrew was unaware of the existence of the 1976 will until at or around the time of his solicitor's letter of 11 November 2020. It was plainly in Andrew's interests to inform John of the existence of the 1976 will if Andrew was aware of the will. Andrew's actions were to the contrary and were consistent with him believing that the 1975 will was Margaret's last will. It is, however, not necessary to come to any conclusion on whether Andrew was unaware of the existence of the 1976 will until shortly before his solicitor's letter of 11 November 2020. The master made no findings in this respect. The costs order against Andrew was grounded on the implicit finding that Andrew was in possession of the 1976 will at all material times insofar as Andrew had (or had access to) the file of documents kept by William relating to Margaret's estate.
4. Andrew's failure to adduce any affidavit evidence on the subject is conspicuous. Before the master John's written submissions in support of the costs order he was seeking stated:

No explanation has been given by Andrew as to why it took him to November 2020 - after admitting the 1975 Will was Margaret's last will and giving discovery on oath - to take steps to locate and produce the 1976 Will.

Had these routine steps been taken in February and March 2020 when John wrote to Simon and Andrew notifying them of his intention to apply for letters of administration of the 1975 Will (4 - 5 months before the action was commenced), the costs incurred in this action could have been avoided. The failure to take these steps was unreasonable.[61]

1. It was indisputable that Andrew was in possession of the 1976 will (by virtue of having access to William's file of documents) in early November 2020. In that circumstance it was, in our opinion, open to infer - as the master evidently did - that Andrew was in possession of the 1976 will at all material times (ie since prior to commencement of the litigation). That inference was open on the available evidence as there was nothing in the evidence to suggest that there had been any change of circumstance so far as Andrew held or had access to documents concerning Margaret and her estate. Andrew's failure to give any evidence on the issue supported the drawing of the inference. There was evidence before the master of facts requiring an answer. Andrew was in a position to explain when and in what circumstances he came into possession of the file of documents. Andrew's unexplained failure to provide any explanation allowed the court to draw an inference unfavorable to Andrew with greater confidence (such an inference being available on the evidence).[62]
2. In the circumstances it is more likely than not, as a matter of inference, that Andrew was in possession of the file of documents containing the 1976 will since at least in or about March 2020 (a time prior to the commencement of the litigation in July 2020). That finding is made out as it was open to infer - conformably with the inference drawn by the master - that the materials Andrew was able to provide to his solicitor in November 2020 were materials that Andrew was able to provide to his solicitor on receipt of the pre-litigation letter in March 2020.
3. Additional support for the inference arises from the absence, on the available evidence, of any rational and logical alternative hypothesis for Andrew coming into possession of the relevant file post-commencement of the litigation. Andrew did not, either on appeal or before the master, suggest any such alternative hypothesis - the most that was proffered was said by counsel for Andrew to be no more than speculation and had no basis in the evidence.[63]
4. In a related submission counsel for Andrew argued that Andrew had no cause to seek out documents of this kind until the late October 2020 amendment to John's statement of claim. Before that time, on counsel's argument, the true matter in issue concerned the management and dissipation of the assets of the BE Lynn Trust (it being common ground between the parties that the 1975 will was Margaret's last will). Counsel for Andrew went as far as to submit that the only available inference was that Andrew had no reason to look for any documents until the amendment to the statement of claim.[64] This line of argument confuses the question of Andrew's possession of the 1976 will with Andrew's actual knowledge or awareness of the 1976 will. The implicit finding under challenge in ground 1 is concerned with the former rather than the latter. The argument that Andrew had no reason to seek out the particular document under consideration does not affect the inference that the document was in Andrew's possession at all material times.
5. The master did not err in finding, implicitly, that Andrew was in possession of the 1976 will at all material times. This aspect of ground 1 fails.

Did the master err by taking an irrelevant consideration into account?

1. The assertion that the master erred by taking an irrelevant consideration into account was not developed in any meaningful way. The argument was misconceived. The finding that proceedings 'may not' have been issued had the 1976 will been brought to John's attention was made in support of the master's conclusion that it was Andrew's action which led to the proceedings being initiated and pursued by John - that being a finding as to causation that is not challenged on appeal. Whether the commencement of the flawed proceedings was caused or materially contributed to by conduct on the part of Andrew (rather than John) was plainly relevant to the exercise of the master's discretion as to costs. This aspect of ground 1 fails.

Is the adverse costs order unreasonable or plainly unjust?

1. Andrew's complaint that the costs order was unreasonable or plainly unjust is a complaint of inferred error - he alleges that error is to be inferred from the result. The contention is that, on the facts, a substantial wrong has occurred such that there must have been some misapplication of principle when regard is had to all of the relevant factors.
2. Counsel for Andrew submitted that the context was not such as would excite Andrew's suspicion and cause him to investigate whether the 1975 will was in fact Margaret's last will. Counsel said that, as originally conceived, the focus of the parties' dispute was the assets of the BE Lynn Trust rather than Margaret's estate and her will. In those circumstances Andrew, acting reasonably, might not turn his mind to what documents he had in relation to whether the 1975 will was Margaret's last will. There was, so understood, no misconduct or unreasonable conduct that could justify an order for adverse costs.[65]
3. Counsel for Andrew contended that the question of unreasonableness was to be judged by reference to Andrew's presumed state of mind.[66] It was urged that Andrew could only be guilty of unreasonable conduct justifying the costs order as made if: (1) Andrew was aware of the 1976 will before the commencement of proceedings[67] (a matter which was not the subject of any findings); or (2) being apprised of the relevant issue, Andrew either deliberately or negligently did not turn his mind to the documents that he had or had access to that bore on that issue.[68]
4. These submissions, and thus the contention that the costs order was unreasonable or plainly unjust, focused attention on Andrew's lack of actual knowledge or appreciation of the 1976 will. The contention that the master's discretion had miscarried ignored the circumstance that the 1976 will was in Andrew's possession at all material times. It is incorrect in principle to approach the question of whether the exercise of discretion was unreasonable or plainly unjust in so confined a fashion. Proper regard must be had to all the relevant facts and circumstances. In considering whether it was reasonably open to conclude that Andrew's conduct was so unreasonable as to warrant Andrew paying John's costs of the proceedings it is necessary to have regard to the fact that the 1976 will was in Andrew's possession.
5. It assists to consider what a litigant in Andrew's position would have done, acting reasonably, upon receipt of John's solicitor's pre‑litigation letter of 10 March 2020.
6. Counsel for Andrew emphasised that the letter was said to be written regarding the BE Lynn Trust.[69] On the face of the letter that is one of the primary matters raised. The letter has the subject line 'The BE Lynn Trust' and commences by stating that: 'We write regarding the BE Lynn Trust'.[70] Much of the background then refers to the Trust.[71] Part of the action John foreshadowed was that, if appointed as administrator with respect to Margaret's estate, he would appoint himself as trustee of the Trust to make distributions and take action, if necessary, to recover any Trust assets that had been misapplied.[72]
7. However, the BE Lynn Trust was not the sole matter raised by the 10 March 2020 letter.
8. The 10 March 2020 letter also referred to Margaret's death and the 1975 will; it asserted that probate was never granted in relation to Margaret's estate.[73] There was a heading 'Proposed Application in respect of Margaret's Estate'. Under that heading John's solicitor foreshadowed that John intended to apply for a grant of letters of administration with the will annexed in respect of Margaret's estate (so as then to appoint himself as trustee of the Trust).[74] The letter concluded by asking whether Andrew had any objections to the John making the application for letters of administration in respect of Margaret's estate; and, if so, why Andrew had an objection.[75] Accordingly, the litigation that eventually ensued was foreshadowed. In that respect Andrew was specifically asked to identify the basis of any objection he had to John making an application for letters of administration in respect of the 1975 will.
9. In these circumstances, it was reasonably open to conclude that a prospective litigant, acting reasonably, would not have simply passed over issues arising as to Margaret's will and her estate.
10. It was reasonably open to conclude that a prospective litigant, acting reasonably, would have sought to identify all available information and documentation concerning Margaret's will and her estate so that he or she might adequately instruct his or her legal adviser. It was reasonably open to conclude that such a litigant, in possession of a file of documents kept by William relating to his dealings with Margaret's estate, acting reasonably, would have identified the file and provided it to his or her legal adviser. Andrew did not do so. He did not take the steps that it was open to find ought to have been taken by a prospective litigant acting reasonably in the circumstances. Had Andrew taken such steps the likelihood is that the proceedings would have been avoided in as much as the master found, without challenge on appeal, that it was Andrew's actions which led to the proceedings being initiated and pursued by John.[76]
11. It was, in the circumstances, reasonably open to the master to conclude that Andrew's conduct was so unreasonable that Andrew should pay John's costs of the action. Andrew has not established that the costs order as made was unreasonable or plainly unjust. On the facts this is not a case where a substantial wrong has occurred so as to signify that the master's exercise of discretion miscarried.
12. This final aspect of ground 1 fails.

Disposition ground 2 - Contention of unreasonable conduct on John's part Andrew's submissions in support of ground 2

1. Ground 2 was also in two parts. First, Andrew contended that the master erred in holding that John had acted reasonably and could have taken no steps to ascertain whether Margaret had made a further will after the 1975 will. Second, Andrew contended that there was unreasonable conduct on John's part such that John should pay Andrew's costs.
2. The first part of ground 2 is misconceived. The master made no such finding. The relevant part of the master's reasons simply records the submission made on John's behalf rather than making any finding to the effect of that posited by part 1 of ground 2.[77] Accordingly, ground 2 turns on whether the master was in error in failing to find that there was unreasonable conduct on John's part requiring that a costs order be made against him.
3. In support of ground 2, Andrew submitted that:
   1. There was no evidence that John satisfied himself that the 1975 will was in fact Margaret's last will.[78]
   2. There was no evidence that John requested that either Simon or Andrew confirm that the 1975 will was in fact Margaret's last will.[79]
4. Andrew also relied on a proposal contained in a letter from his solicitor dated 1 April 2020. Andrew was content for the assets remaining in the Trust - thought to comprise an amount of approximately $29,000 - to be divided equally between the three brothers.[80] Andrew said that the letter provided a reasonable basis on which to distribute any undistributed assets in the BE Lynn Trust. Thus, according to Andrew, there was insufficient evidence of there being any or any significant assets of the BE Lynn Trust or Margaret's estate. That being the position, on Andrew's argument, there was no need for John to be appointed as the administrator of Margaret's estate.[81]
5. Andrew alleged a House v The King discretionary error insofar as the master had no regard to the considerations specified in [83] - [84] above. He argued that, were these matters taken into account as material considerations, the master erred in failing to find that there was unreasonable conduct on John's part in commencing and mainta[82]ing the proceedings.82

The extent to which ground 2 exceeds Andrew's contentions before the master

1. In oral submissions at the appeal hearing, counsel for Andrew accepted, quite properly, that: (1) aspects of Andrew's contentions in support of ground 2 exceeded what was relied on by Andrew at the hearing before the master; and (2) those matters could not sustain the claim of discretionary error now made on appeal.[83] That is particularly so where the only kind of discretionary error relied on in support of ground 2 was a failure to take into account some material consideration.
2. The matter relied on by Andrew in support of ground 2 was the allegation of unreasonable conduct on John's part in commencing proceedings in the circumstances referred to in sub-pars (a) - (c) below and in having failed to accept Andrew's proposal referred to in sub‑par (d) below:

(a) prior to commencing the proceedings, it was incumbent on [John] to satisfy himself that the 1975 Will was the last will that Margaret Grove had executed;

(b) at no material time did [John]:

(i) request to know from [Simon or Andrew] whether Margaret Grove had executed a subsequent will to the 1975 Will;

(ii) adduce evidence to the effect that such a request had been made;

(c) there were no demonstrable assets forming part of the BE Lynn Trust or the estate of Margaret Grove so as to require an Administrator to be appointed;

(d) the proposal contained in the letter from [Andrew's] solicitor to [John's] solicitor dated 1 April 2020 sent prior to the commencement of the proceedings, constituted a reasonable basis upon which any undistributed assets in the BE Lynn Trust could have been distributed without the requirement to appoint an Administrator.[84]

1. Andrew, by counsel, accepted that before the master he did not raise the matters specified in sub-pars (a), (b) or (d). It was only sub‑par (c) that was relied on before the master.[85] Accordingly, quite properly, at the appeal hearing counsel for Andrew informed the court that only sub-par (c) was pressed on the appeal.[86] In this respect, before the master the gravamen of then counsel for Andrew's submissions was that there was no estate belonging to Margaret to administer.[87] In other words the part of sub-par (c) that was agitated before the master - and which could ground discretionary error on appeal - was limited to whether there were demonstrable assets forming part of Margaret's estate so as to require that an administrator be appointed.
2. The consideration of ground 2 that follows will be confined conformably with Andrew's modified case as presented at the appeal hearing. For that reason it is not necessary to say anything further about the submissions recorded at [83] - [85] above. However, it should be apparent from what we have said in relation to ground 1 that sub-pars (a) and (b) in support of ground 2 are misconceived (see [47] ‑ [49] above).

1. Counsel for Andrew submitted that, irrespective of the 1976 will, John's cause of action was misconceived and therefore doomed to fail.[88] Counsel relied, in particular, on the amendment to the statement of claim which abandoned the allegations relating to the BE Lynn Trust and introduced the new allegations as to a debt due to Margaret's estate. Counsel said that this demonstrated that John had commenced the proceedings on an erroneous basis.[89]
2. The difficulty with ground 2 is that the master held that:

[I]t is not possible, or appropriate, to determine whether or not [John's] action, based on the 1975 will, might have succeeded. Interlocutory processes were not complete and it may be the case further documents came to light which bore upon the issue of whether the $54,600 was actually paid. Some investigation of relevant accounts might have been necessary. I certainly could not conclude [John's] claim was doomed to fail. Determining matters of limitation on interlocutory applications is fraught with difficulty. As counsel for [John] pointed out, the $54,600 was payable pursuant to a deed. That would affect the limitation period. It was also not clear if demand had been made. While there were significant obstacles standing in the way of [John] establishing the debt was still extant, the mere fact the issue had been raised and there might have been a debt owing to the estate may have justified [John] being appointed administrator.[90] (emphasis added)

1. Counsel for Andrew accepted, at the appeal hearing, that ground 2 did not challenge the master's finding that he could not say the action was doomed to fail because it was possible that Margaret's estate was entitled to recover the alleged debt of $54,600. Nothing in that part of the master's reasons was challenged on appeal.[91]
2. The finding sought in sub-par (c) to ground 2 - that the master ought to have held that there were no demonstrable assets forming part of Margaret's estate so as to require the appointment of an administrator - is incompatible with the master's unchallenged finding as reproduced at [91] above.
3. When this was raised with counsel for Andrew, counsel submitted that John's claim as originally formulated was unreasonably commenced. There was, at that time, no demonstrable assets. It was, in counsel's submission, insufficient that post-amendment (shortly before production of the 1976 will) the action was on a proper footing.[92] There are two answers to that contention. First, the relief John sought was always that he be granted letters of administration with the will annexed in respect of Margaret's estate - insofar as his statement of claim could be amended without leave it sufficed in assessing whether John had acted reasonably that the action had potential utility so far as the alleged debt was concerned. Moreover, if there was an arguable debt post-amendment there was also an arguable debt at commencement. Second, an argument in the form advanced orally on appeal was not presented on Andrew's behalf to the master. Andrew's contention before the master was simply that there was no estate belonging to Margaret to administer (see [72] above). The argument now relied on before this court could not establish discretionary error on the part of the master consistently with the principle in the Macedonian Orthodox Community Church case.
4. There is no merit in ground 2.

1. Andrew has not established that the master's costs determination is wrong in the sense of being infected by discretionary error. Nor is the master's decision attended by sufficient doubt to warrant reconsideration. Leave to appeal should be refused and the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate To The Honourable Justice Vaughan

[1] See Grove v Kenworthy-Groen [No 2] [2021] WASC 102 (primary reasons).

[2] Both before the master and on appeal the parties referred to themselves and the other parties by Christian names. We will continue that convention. The use of Christian names is convenient given the common family name of the appellant and the first respondent.

[3] Grove v Kenworthy-Groen [2020] WASC 363 [50].

[4] Affidavit of D Tassone sworn 7 December 2020 attachment 'DT-10' GAB 114.

[5] Affidavit of D Tassone sworn 7 December 2020 attachment 'DT-10' GAB 115.

[6] Affidavit of D Tassone sworn 7 December 2020 attachment 'DT-10' GAB 115.

[7] Affidavit of D Tassone sworn 7 December 2020 attachment 'DT-4' GAB 98 (par 3).

[8] Affidavit of D Tassone sworn 7 December 2020 attachment 'DT-6' GAB 103 (par 3).

[12] Appellant's submissions par 12 WAB 13 - 14.

[14] Respondent's submissions par 11 WAB 44 - 45.

[16] John's submissions on application to discontinue proceedings dated 16 February 2021 pars 40 - 41 BAB 75 - 76.

[20] By order of Mitchell JA made 27 May 2021 the application for leave to appeal was referred to the hearing of the appeal: WAB 5.

[23] Supreme Court Act 1935 (WA) s 60(1)(e).

[24] Supreme Court Act s 37(1).

[25] Keet v Ward [2011] WASCA 139 [17].

[26] Appellant's submissions pars 9 - 10 WAB 13. See also WAB 1, 28 (par 1).

[27] Appellant's submissions pars 10, 77 WAB 13, 26.

[28] For example, in relation to appeals against interlocutory orders. See NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [117.1].

[29] Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [21].

[31] Barboutis v The Kart Centre Pty Ltd [No 2] [2020] WASCA 41 [165] (referring to Spotless Group Ltd v Premier Building and Consulting Pty Ltd (receivers appointed) [2008] VSCA 115 [10] - [11] and Keet v Ward [17]).

[32] Spotless Group Ltd v Premier Building and Consulting Pty Ltd (receivers appointed) [11].

[33] Keet v Ward [17]. See House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.

[34] Spotless Group Ltd v Premier Building and Consulting Pty Ltd (receivers appointed) [11].

[35] Transport Accident Commissioner v O'Reilly [1998] VSCA 106; [1999] 2 VR 436, 457 (quoted with approval in Spotless Group Ltd v Premier Building and Consulting Pty Ltd (receivers appointed) [11]).

[36] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 - 625. See also: Re Western Australian Planning Commission; Ex parte Solomon [2010] WASCA 236 (S) [9]; Lafferty v Waterton [2016] WASCA 183 [16] - [18].

[37] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (624).

[38] Appeal ts 26 - 27, 30 - 31; Appellant's submissions pars 60 - 61, 63 WAB 22 - 23.

[39] Appellant's submissions par 12 WAB 13 - 14.

[40] Appellant's submissions par 64 WAB 24. See also par 44 WAB 19.

[41] Appeal ts 2 - 3, 6, 11 - 12, 16 - 18, 20 - 25, 28 - 30; Appellant's submissions par 66 WAB 24. See also pars 8, 15, 25, 33, 39 - 40, 42 - 43, 45, 64 WAB 12 - 14, 16, 18 - 20, 24.

[42] Appellant's submissions pars 26 - 40 WAB 17 - 19.

[43] Appellant's submissions par 16 WAB 14.

[44] Appeal ts 32, 35; Appellant's submissions par 22 WAB 16.

[45] Appeal ts 32; Appellant's submissions pars 17 - 20 WAB 14 - 15.

[46] Affidavit of D Tassone sworn 7 December 2020 attachment 'DT-6' GAB 103 (par 3).

[47] Affidavit of D Tassone sworn 7 December 2020 attachment 'DT-6' GAB 105 (par 18).

[48] Affidavit of D Tassone sworn 7 December 2020 pars 9, 15 - 16 GAB 69, 71. See also attachments 'DT-2' and 'DT-8' GAB 78, 110.

[49] Appeal ts 8 - 10; Appellant's submissions pars 49 - 57 WAB 20 - 22.

[50] Affidavit of D Tassone sworn 7 December 2020 par 18 GAB 71.

[51] Counsel for Andrew seemingly accepted as much at the appeal hearing: Appeal ts 12 - 13.

[53] Appellant's submissions par 66 WAB 24.

[54] Appellant's submissions par 65 WAB 24.

[55] Appellant's submissions pars 14, 42 WAB 14, 19.

[56] Appeal ts 2. See also Appeal ts 12.

[57] Respondent's submissions par 8 WAB 43 - 44.

[58] Appeal ts 48, 54 - 56; Respondent's submissions pars 11 - 17 WAB 44 - 47.

[59] Respondent's submissions pars 9 - 10 WAB 44.

[60] Appeal ts 48 - 50, 54; Respondent's submissions pars 18 - 19 WAB 47.

[61] John's submissions on application to discontinue proceedings dated 16 February 2021 pars 40 - 41 BAB 75 - 76.

[62] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 308, 312, 320 - 321; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [63] - [64]; Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 [232]; Chong v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402 [207] - [208].

[64] Appeal ts 6 - 8, 10 - 11, 20 - 21, 24 - 25, 29 - 30, 33 - 34.

[65] Appeal ts 29 - 34. See also Appeal ts 7 - 8.

[70] Affidavit of D Tassone sworn 7 December 2020 attachment 'DT-6' GAB 103.

[71] Affidavit of D Tassone sworn 7 December 2020 attachment 'DT-6' GAB 103 - 104 (pars 1 - 2, 4 - 11).

[72] Affidavit of D Tassone sworn 7 December 2020 attachment 'DT-6' GAB 105 (par 17).

[73] Affidavit of D Tassone sworn 7 December 2020 attachment 'DT-6' GAB 103 (par 3).

[74] Affidavit of D Tassone sworn 7 December 2020 attachment 'DT-6' GAB 105 (par 17).

[75] Affidavit of D Tassone sworn 7 December 2020 attachment 'DT-6' GAB 105 (par 18).

[78] Appellant's submissions par 68 WAB 25.

[79] Appellant's submissions par 69 WAB 25.

[80] Affidavit of D Tassone sworn 7 December 2020 attachment 'DT-7' GAB 108 - 109.

[81] Appellant's submissions pars 70 - 74 WAB 25 - 26.

[82] Appellant's submissions pars 75 - 76 WAB 26.

[83] Appeal ts 35 - 36, 40 - 41. See also Appeal ts 10. As to counsel for Andrew's concession, it is well established that, unless fundamental and obvious, it is incumbent on parties who contend on appeal that a discretion has miscarried to demonstrate that the primary judge's attention was drawn to the particular matter of which complaint is made: Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 (Macedonian Orthodox Community Church) [120]; Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61; (2019) 99 NSWLR 419 [5], [73].

[85] See the references in fn 83.

[87] Appeal ts 35 (referring to ts 89 - 91).

[91] Appeal ts 44. See also Appeal ts 45.