[2016] ACTSC 31

1. The order made on 26 June 2014 be amended to read:

That the plaintiff recover one fifth of her costs of the proceedings and the whole of her costs of the submissions as to costs from the assets of the Estate of the late Graeme William Box, such costs to be paid on a common fund basis.

1. There be no order for costs of and incidental to this mention.

PRACTICE AND PROCEDURE - Costs - costs of proceedings - costs of making submissions on discrete issue - construction of order - order not sealed - order not perfected

Court Procedures Rules 2006 (ACT), Pt 6.2

Brennand v Hartung (No 3) [2015] ACTSC 149

Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218

Calderbank v Calderbank [1976] Fam 93

Commonwealth v Davis Samuel (No 9) [2015] ACTSC 127

Noelle Elizabeth Hillman v Lynda Box, Debrah Box and Skye Box as Executors of the Will of Graeme William Box (No 4) [2014] ACTSC 107

Noelle Elizabeth Hillman v Lynda Box, Debrah Box and Skye Box as Executors of the Will of Graeme William Box (No 5) [2014] ACTSC 150

R v Gorman [2009] ACTSC 7

Shercliff v Engadine Acceptance Corp Pty Ltd (No 2) (1982) 3 BPR 9207

Lynda Box, Debrah Box, Skye Box as Executors of the Estate of Graeme William Box (Defendants)

1. The simple Will made by Graeme William Box, who died on 23 November 2009, was the subject of complex and extended litigation.

2. In these proceedings, the plaintiff, who had been in a domestic relationship with Mr Box until 2006, commenced proceedings under the Family Provisions Act 1969 (ACT), claiming a provision from the estate of Mr Box, but then also claimed certain declarations and orders that would entitle her to certain assets that otherwise would form part of the estate.

3. On 28 May 2014, I made provision in the sum of $50,000 for the plaintiff out of the estate but otherwise dismissed her claims. See Noelle Elizabeth Hillman v Lynda Box, Debrah Box and Skye Box as Executors of the Will of Graeme William Box [2014] ACTSC 107 (Hillman v Box (No 4)).

4. I ordered that the defendants' costs be paid out of the estate on a trustee basis, the conventional order for the executors and beneficiaries in a matter of this kind. I proposed an order for the plaintiff's costs (Hillman v Box (No 4) at [412]) and invited submissions on that order.

5. The plaintiff initially indicated that she made no "contrary submissions" to the order I proposed. The defendants, however, submitted that they should have their costs from 11 December 2012, when they sent to the plaintiff's solicitor a letter which purported to be a "Calderbank letter" (see Calderbank v Calderbank [1976] Fam 93) or, alternatively, that the plaintiff bear her own costs. The plaintiff then made extensive submissions opposing the orders sought by the defendants.

6. On 26 June 2014, I held that the letter of 11 December 2012 from the defendants' solicitors to the plaintiff's solicitors was not a "Calderbank letter" and that, in any event, the plaintiff was not acting unreasonably in rejecting the offer it contained. Instead, I ordered:

That one fifth of the plaintiff's costs including the costs of the submissions as to costs be paid on a common fund basis out of the assets of the Estate of the late Graeme William Box.

See Noelle Elizabeth Hillman v Lynda Box, Debrah Box and Skye Box as Executors of the Will of Graeme William Box (No 5) [2014] ACTSC 150 (Hillman v Box (No 5)).

7. The parties, however, could not agree on the construction of this order. The plaintiff says that she is entitled to one fifth of her costs of the proceedings, as clearly ordered, but her costs of the costs submissions in full.

8. The defendants say that, under the order I made, the plaintiff is only entitled to one fifth of her costs of the proceedings and also one fifth of the costs of the costs submissions.

9. Initially, the plaintiff's solicitors wrote to me, seeking clarification of the order. Although they did send a copy of their letter to the defendants' solicitors, I did not receive any communication from them.

10. In any event, it was not really appropriate to deal with this matter by correspondence. The ordinary approach to such a matter is to move the court for orders. An Application in Proceedings under Pt 6.2 of the Court Procedures Rules 2006 (ACT) would be the conventional and apt way of proceeding.

11. Accordingly, I listed the matter for mention and, if the parties were ready, for submissions.

12. The order for costs has not been sealed by the Registrar. Accordingly, the court may, in an appropriate case, recall it and amend it. That is explained in Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at 224; [20], in which it was identified that:

the formal recording of the order of a superior court of record as the point at which that court's power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion.

13. That approach has been followed in this jurisdiction. See Commonwealth v Davis Samuel (No 9) [2015] ACTSC 127; R v Gorman [2009] ACTSC 7.

14. The precise circumstances in which an order is perfected in this jurisdiction may, I suggested in Brennand v Hartung (No 3) [2015] ACTSC 149 at [12]- [16], not be entirely clear.

15. In my view, however, the order has not been perfected in this case and so may be recalled and amended or altered.

17. I turn then to the substance of the matter. It seems to me that the order I made was infelicitously expressed.

18. The reason for the plaintiff receiving only one fifth of her costs of the proceedings was expressed by me in Hillman v Box (No 4) at [411], as follows:

I do not consider, however, that Ms Hillman should receive all her costs. I am mindful that she has had some success and had to take the proceedings in order to obtain that success. Nevertheless, she had made a large number of claims which occupied the majority part of the proceedings on which she has failed.

19. That, however, does not apply to the submissions made as to costs. The plaintiff made no initial submission, being content with the order I had proposed. The defendants, however, sought to have the plaintiff either pay their costs under the purported "Calderbank letter" or have no order for costs made. This required the plaintiff to respond.

20. On this issue, namely the plaintiff's costs of the proceedings, the defendants were unsuccessful. I made the order I had originally proposed.

21. This does seem to me to be a discrete issue which is not subsumed in the findings I made about the conduct of the whole proceedings. See Shercliff v Engadine Acceptance Corp Pty Ltd (No 2) (1982) 3 BPR 9207 at 9208. Fairness seems to me to entitle the plaintiff to the costs of making submissions on the costs issue on which she was entirely successful.

22. I accept that this may not have been the immediate impression that the order I made, set out above (at [6]), would suggest that I had intended. On reviewing it, I can see no reason why the costs of the separate issue as to the plaintiff's costs should be reduced for a reason that did not apply to that particular issue. Indeed, no reason was suggested as to why this should be so.

23. At the mention of this matter, neither party sought to be heard against that approach, namely that the plaintiff recover all her costs of the submissions as to her costs, and accepted that this would be a satisfactory outcome.

24. There were also a number of orders for costs of interlocutory proceedings made in the matter. I said of those in Hillman v Box (No 5) at [71]-[75]:

1. The defendants also referred to interlocutory costs orders made on 8 December 2010 and on 18 February 2011 in their favour. They submitted that the court should order that those costs orders should be paid.
2. So far as the first order is concerned, the defendant sought to appeal against that order. As an interlocutory order, leave to appeal was required (s 37E(4) of the Supreme Court Act 1933 (ACT)) but it appears not to have been granted. The application for leave does not act to stay the proceedings and so there is no reason why that order should not be immediately enforced. Ms Hillman may have grounds to have the application for leave to appeal struck out for want of prosecution.
3. The second order was stated not to be enforceable "until judgment or other order". Judgment has now been given. That order is now enforceable.
4. In my view, both orders for costs are now immediately enforceable. They are not subsumed in any of the orders I have made in connection with the costs of the proceedings, save that the costs out of the Estate cannot be recovered in respect of the costs recovered under those orders from Ms Hillman as costs are an indemnity (Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 567) and so cannot be recovered twice.
5. In my view, these costs are subject to a separate order and so are not subsumed under r 1721 of the Court Procedures Rules 2006 (ACT) nor overtaken by any orders I made on 28 May 2014 or today.

1. Accordingly, I do not consider it is necessary or appropriate to make any order in relation to the earlier interlocutory costs orders.

26. Given the difficulties in the construction of my order, it seems to me that I should be clear that, of course, the plaintiff's costs will not include the costs of any part of the proceedings for which either of these orders have been made as they are not "her costs" in the relevant sense. Further, the defendants can, of course, set off these costs against the orders for costs made in favour of the plaintiff.

27. While this is then clearly recorded, I do not consider that there is any need to set that out in an order, as the procedures the court will follow will be in accordance with this comment.

28. Accordingly, I will amend the order made on 26 June 2014 to read:

That the plaintiff recover one fifth of her costs of the proceedings and the whole of her costs of the submissions as to costs from the assets of the Estate of the late Graeme William Box, such costs to be paid on a common fund basis.

29. There seems no reason why either party should bear the costs of the other party of this mention in court.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice .Refshauge.