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[2026] NSWSC 17
Supreme Court of NSW
2026-02-03
Meek J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Lord v Craig [2026] NSWSC 17
Hearing dates: 7 November 2025 (hearing), 17 November 2025 (written submissions)
Date of orders: 3 February 2026
Decision date: 03 February 2026
Jurisdiction: Equity – Probate and Family Provision List – Family Provision
Before: Meek J
Decision: Costs capping orders made at early interlocutory stage
Catchwords: SUCCESSION — Family provision — Costs — Prospective costs capping orders — Novel contested application for costs capping in small estate post-mediation and prior to completion of interlocutory steps before allocation of any hearing date — No precedents of contested family provision capping orders being made at an early interlocutory stages — Parties’ current actual costs total $62,416 incl GST being approximately 46% of net estate of $135,674 — Held cost capping order is appropriate (amount that any party may recover from any other party, or out of the estate in these proceedings limited to $22,500 incl GST)
SUCCESSION — Family provision — Prospective costs capping —Examination of and guidance regarding costs capping in civil litigation— Examination of family provision costs by reference to nature and purpose of the jurisdiction legislative and practice provisions, differences between family provision costs and costs in other civil litigation
SUCCESSION — Family provision — Examination of historical antecedents of costs capping following final hearing of family provision claims — Consideration of quantum of costs in “standard” family provision and ‘uplift’ referable to success in conditional cost agreements
SUCCESSION — Family provision — Prospective costs capping — Consideration and discussion of costs capping at early interlocutory stage — Consideration of what is ‘proper’ and ‘proportionate’ — The basis for early interlocutory capping may be justified by various sources including r 42.4 UCPR, s 98(1)(b),(3) CPA and s 99 Succession Act — Evidentiary and other materials discussed
SUCCESSION — Family provision — Prospective costs capping — Prospective capping must be legally principled and involves an evaluative determination of relevant matters including proportionality considerations rather than being determined by fixed percentages or rules of thumb — The capping power serves various objectives including ensuring that the purposes of family provision jurisdiction are not frustrated or thwarted —There needs to be a sufficiency of materials on which the Court is able to make the evaluative assessment in which having regard to the nature of the process precision or exactitude is not possible or warranted and there may be a range of appropriate capping outcomes based on the evaluative assessment.
SUCCESSION — Family provision — Prospective costs capping — interlocutory costs capping orders under UCPR r 42.4 are subject to later variation where there are ‘special reasons, and it is in the interests of justice to do so’ — Comment (obiter) regarding ‘special reasons’ and ‘interests of justice’
SUCCESSION — Family provision — Discussion of party and practitioner obligations in light of legislative reform and cost concerns especially in small estates
WORDS AND PHRASES — ‘Proportionality’, ‘Costs capping’ ‘Maximum costs’ ‘Protective costs order’
Legislation Cited: Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Civil Procedure Act 2005 (NSW)
Supreme Court Rules 1970 (NSW)
Trustee Act 1925 (NSW)
Cases Cited: Alcan Australia Ltd v Geraghty (Supreme Court (NSW), Young J, 8 October 1993, BC9302153, unrep)
Alexiou v Alexiou [2024] NSWSC 1340
Alexiou v Alexiou [2025] NSWCA 164
Allsop Investments Pty Ltd v Jerkovic & Ors [2021] NSWSC 1399
Askew v Askew [2015] NSWSC 192
Baker v The Queen [2004] HCA 45; (2004) 210 ALR 1
Bare v Small (2013) 47 VR 255; [2013] VSCA 204
Baychek v Baychek [2010] NSWSC 987
Blue Mountains Conservation Society Inc v Delta Electricity [2009] NSWLEC 150
Bogan v Estate of Peter John Smedley (Dec'd) [2025] HCA 7; (2025) 422 ALR 94
Brown & Anor v Grosfeld [2011] NSWSC 1429
Carey v Robson; Nicholls v Robson (No 2) [2009] NSWSC 1199
Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources [2009] NSWLEC 165; (2009) 170 LGERA 22
Carroll v Cowburn [2003] NSWSC 248
Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864
Dalton v Paull (No.2) [2007] NSWSC 803
Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; (2010) 176 LGERA 424
Dinnen v Terrill [2007] NSWSC 1405
Estate Pascale [2016] NSWSC 443
Fiorentini v O’Neill [1998] NSWCA 79
Flew v Mirvac Parking Pty Ltd [2006] FMCA 1818
Gill v Smith [2007] NSWSC 832
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Gorton v Parks (1989) 17 NSWLR 1
Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843
Grigor v Stock [2025] NSWSC 232
Haertsch v Whiteway (No 2) [2020] NSWCA 287
Harris v Harris [2018] NSWCA 334
Hirachand v Hirachand [2025] AC 599; [2024] UKSC 43
Horne v Horne [2001] NSWSC 50
Idoport Pty Ltd v National Australia Bank Ltd (2000) 49 NSWLR 51; [2000] NSWSC 338
Ikonomou v Panagopoulos [2017] NSWSC 1805
Jurak v Latham [2023] NSWSC 1318
Jvancich v Kennedy (No 2) [2004] NSWCA 397
Kain v R&B Investments Pty Ltd [2025] HCA 28
Kay v Archbold [2008] NSWSC 254 per White J
Lownds v Home Office (Practice Note) [2002] 1 WLR 2450
Mehcur v Mehcur [2021] NSWSC 1252
Mendonca v Tonna [2024] NSWCA 288
Michos v Eastbrooke Medical Centre Pty Ltd [2019] VSCA 282
Mitchell v Mitchell [2010] NSWSC 179
Moore v Moore [2004] NSWSC 587
Nicholls v Michael Wilson & Partners Ltd (No 2) [2013] NSWCA 141
Nudd v Mannix [2009] NSWCA 327
Oxley v Oxley [2018] NSWSC 91
Parker v Parker [2006] NSWSC 473
Pethers v Pethers (No 2) [2025] NSWSC 561
Poche v Poche [2020] NSWSC 835
Roberts v Rodier [2006] NSWSC 1084 per Campbell JA
Robinson v Glennon (No 2) [2025] NSWSC 1120
Rogic v Samaan (No 2) [2018] NSWSC 1573
Salmon v Osmond [2015] NSWCA 42; (2015) 14 ASTLR 442
Sgro v Thompson [2017] NSWCA 326
Sherborne Estate (No 2): Vanvalen v Neaves [2005] NSWSC 1003; 65 NSWLR 268
Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521
Skalkos v T & S Recoveries Pty Ltd [2004] NSWCA 281; (2004) 65 NSWLR 151
Smith v Blanch [2025] NSWCA 124
Smith v NRMA Insurance Ltd (2016) 77 MVR 480; [2016] NSWCA 250
Squire v Squire [2019] NSWCA 90
Szlazko v Travini [2004] NSWSC 610
Tarbes v Taleb [2023] NSWSC 565
The Estate of Tatiana Anorov [2024] NSWSC 1301
Tobin v Ezekiel - Ezekiel Estate [2008] NSWSC 1108
Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 571
Towill v Towill [2024] NSWSC 1384
Underwood v Underwood [2009] QSC 107
Wheatley v Lakshmanan (No 2) [2022] NSWSC 851
White (Deceased) (1932) 49 WN (NSW) 178
Wilson v Porada (No 2) [2017] NSWSC 1362
Texts Cited: Dal Pont, GE, The Law of Costs (5th ed, 2021, LexisNexis)
Dixon, Rosalind ‘A New Australian Constitutionalism? Constitutional Purposes, Proportionality and Process Theory’ [2024] SydLawRw 23; (2024) 46(4) Sydney Law Review 455
Machiavelli, Niccolo ‘The Prince’ Chapter XVII see Hoyt, J Keeler, Hoyt's new cyclopedia of practical quotations drawn from the speech and literature of all nations, ancient and modern, classic and popular, in English and foreign text: With the names, dates, and nationality of quoted authors, and copious indexes ed Kate L Roberts (Funk & Wagnalls Company New York and London, rev and enl ed, 1922) (see endnotes for accessible link)
Practice Note SC EQ 07 – Probate and Family Provision List
Tuckey, John S., (ed), Mark Twain’s “Which Was the Dream?” and Other Symbolic Writings of the Later Years (1966, University of California Press)
New South Wales Legislative Council, Parliamentary Debates, 26 June 2008 and 24 September 2008
Catanzariti, Therese ‘New Family Provision Regime Including New Family Provision Practice’ (Paper, 1 April 2013) (see endnotes for accessible link)
Dictionary.com (online) (see endnotes for accessible link)
Macquarie Dictionary (online ed)
Category: Procedural rulings
Parties: Kurt Lord / Plaintiff
Heidi Craig / Defendant
Representation: Counsel:
H Wilcox / Plaintiff
D Price / Defendant
Solicitors:
Turnbull Hill Lawyers / Plaintiff
Willis & Bowring Solicitors / Defendant
File Number(s): 2025/00202819
HIS HONOUR: ‘Proportionality’ is one of those words that is descriptive in concept, explaining a relationship between matters or things [1] . It is used broadly in life and in particular in the law. Quintessentially it takes its meaning from the context in which it is considered.
‘Proportionality’ when used in life may be subjective and truly be “in the eye of the beholder”. Mark Twain famously commented that “by the eternal laws of proportion a child's loss of a doll and a king's loss of a crown are events of the same size” [2] .
Inherent in the nature of ‘proportionality’ is the idea that there is a proper balance between the matters being considered [3] . The adjective ‘proper’, whilst context specific, generally conveys the notion of something being fit or suitable or appropriate to a particular purpose or circumstance [4] . What is proper and what is proportional is thus understood by reference to a standard which in life and litigation is either fixed or constant [5] , variable or evaluated according to criteria.
‘Disproportion’ inevitably varies according to subject matter and values. Inheritance and events connected to it and flowing from it has particular capacity to provoke strongly disproportionate reactions. Machiavelli noted that “A son could bear with great complacency, the death of his father, while the loss of his inheritance might drive him to despair.” [6] .
Family provision litigation in one sense is essentially premised upon an asserted failure on intestacy or (more usually) by a testator to proportion his or her estate to make adequate and proper provision for the applicant.
The assessment of what is a proportionately appropriate outcome or more particularly what is “proper and adequate provision” is not left to the vagaries of the parties’ perceptions of entitlement or subjective or arbitrary determinations.
Principally, the legislative model under the Ch 3 Succession Act 2006 (NSW) (Succession Act or SA), as with earlier family provision legislation, permits certain classes of applicants to consider making within prescribed time periods applications to address perceived inadequacy of provision from an estate.
Judges are entrusted to decide whether intervention is appropriate in any given case. Assessment of what is adequate and proper is not made by or limited to any fixed concept of those matters but by reference to the facts and circumstances of each individual case [7] and by reference to general knowledge and experience of current social conditions and standards [8] . The statutory scheme allows flexibility for the judicial function to be exercised over time as society evolves and community standards change [9] . It requires an evaluative judgment that has regard to all relevant circumstances [10] .
Ultimately, I have determined to make a prospective cost capping order. In the absence of any prior precedent of a contested application, it is timely to address the basis of capping in a detailed and principled way, and to explain my reasons later on for doing so. By way of summary overview the following may be noted.
Capping at an early interlocutory stage must be legally principled and involves an evaluative determination of relevant matters including proportionality considerations rather than being determined by fixed percentages or rules of thumb. The capping power serves various objectives including ensuring that the purposes of family provision jurisdiction are not frustrated or thwarted.
In any proposed application there will need to be a sufficiency of materials on which the Court is able to make the evaluative assessment in which having regard to the nature of the process precision or exactitude is not possible or warranted and there may be a range of appropriate capping outcomes based on the evaluative assessment.
Self-evidently, prospective capping will be on the basis of information or evidentiary materials, some or all of which may be untested (at least by cross-examination) and in any event inherently less certain and incomplete than exists at or after a final hearing. The lack of certainty may vary in extent depending upon how early in the interlocutory stages of the proceedings the application is made and heard and the nature of different sorts of information (some details being more readily capable of ascertainment and less subject to change than others).
A capping order may be able to be made notwithstanding some uncertainties if the judge determines that information is ‘sufficient’ to make an evaluative assessment. In this regard, risks attendant upon prospective cost capping may vary in nature and degree but are ameliorated by the qualification that a prospective capping order is subject to subsequent final variation to address (if need be) the ultimate justice or interests of justice of the case.
Sometimes the evidentiary materials will be too sparse or uncertain to enable the evaluative assessment to be adequately made. In such cases the application might have to be dismissed or alternatively deferred for a short time pending receipt of further information.
This case involves purely a family provision claim. Other considerations informing capping will apply if the plaintiff seeks additional relief (e.g. probate or trust relief), reflective of the purposes of such other jurisdictional relief.
The Court will be amenable to receiving proposed consent capping orders at interlocutory stages. Nonetheless, in light of the nature of the jurisdiction and the purposes to be served, the Court will not merely make such orders without due consideration.
The deceased was married to Cherylyn Georgina Hodges (Cherylyn), and they divorced in 1992.
There are five children of the marriage being relevantly Heidi Jayne Craig (Heidi/defendant) aged 54, Rene Lord (Rene), aged 52, Amy Handel (Amy) aged 50, Kurt Edward Lord (Kurt/plaintiff) aged 45 and Sarah Clementi (Sarah) aged 44.
The deceased, for the last 19 years of his life, from approximately 2005, lived in Nelson Bay. The plaintiff moved to Waterford, Ireland in 2020 with his former partner, and currently lives there with his daughter, Isabelle aged 5. The defendant is married to or in a relationship with Chad Islip and she has 3 children, Blake, Brennan, and Olivia. She lives in Gymea with Chad, her mother and her children.
The defendant asserts that prior to the deceased's death, he instructed her to transfer certain property of his to her.
The deceased's estate is on any view of it small. Seemingly from about 4 February 2025, the plaintiff by his solicitors corresponded with the defendant’s solicitor, Gregory Miller of Willis & Bowring (Mr Miller), seeking information regarding the deceased’s estate.
On 20 March 2025, Mr Miller responded to the plaintiff's solicitors indicating that the only two assets of the deceased estate were two bank accounts with the National Australia Bank containing approximately $144,000 and liabilities including funeral and burial expenses totalling $16,809.55 leaving a net amount of $127,190.45 which had been distributed to the defendant.
It is evident from evidence which I will briefly refer to below that the defendant within approximately a month of the deceased's death had transferred all the net proceeds of the deceased's NAB accounts to her and applied those funds (she says) as follows:
(a) purchase of a horse float for $25,000; (b) $30,000 to each of Blake and Brennan towards a deposit to purchase a home or payment of debt; (c) $30,000 to purchase a new Ford Ranger Wils Track motor vehicle by Chad; (d) payment of estate liabilities; and (e) use of the balance of the money to reduce the defendant's credit card debt and purchase of items of furniture.
On 27 May 2025 (a day before the 12 month expiry of the limitation period), the plaintiff's solicitors filed a summons on his behalf seeking a family provision order pursuant to SA s 59 and orders designating property as notional estate including orders requiring return of any distributed assets of the estate.
On 3 July 2025, the summons was returnable and various procedural directions were made by Acting Registrar Chetty including allocating the matter for a half day Court-annexed mediation on 1 October 2025.
Procedurally, the matter progressed conventionally. Prior to the mediation the respective solicitors for the parties (Adrian Corbould for the plaintiff and Mr Miller for the defendant) provided costs’ affidavits for costs up to and including the mediation. The plaintiff provided an affidavit in chief with an exhibit, the defendant provided the administrator’s affidavit and a further affidavit in reply to the plaintiff's affidavit and addressing the defendant's financial circumstances.
On 1 October 2025, the matter was mediated before Senior Deputy Registrar Czerwinski. The plaintiff did not physically attend and it seems no request was made by the plaintiff for an AVL mediation. Suffice it is to say that the matter did not resolve at mediation. On 16 October 2025, the matter was listed before Registrar Gerritsen. An order was made extending the time of the plaintiff to file and serve a reply affidavit. Relevantly, the matter was stood over to 6 November 2025 with a notation that the matter may be referred on that date to the Family Provision List Judge in relation to cost capping.
On 4 November 2025, the plaintiff served his reply affidavit.
On 6 November 2025, the matter was listed before Registrar Gerritsen. There was a notation that “the defendant is seeking cost capping orders” and sought a referral to myself as Family Provision List Judge. The defendant was directed to provide certain affidavit materials and a draft of the proposed cost capping orders by 4 PM that afternoon, which occurred.
Eligible persons have been served with Notices of Claim and it appears that the plaintiff is the only child of the deceased making a claim [14] .
On 7 November 2025, the matter was listed before me for “directions” but was, after discussion heard by me. Mr Price of counsel appeared for the defendant. Ms Wilcox of counsel appeared for the plaintiff.
Mr Price intimated that initially, the application was formally the Court’s own motion [15] . That seems at odds with the above-mentioned order of Registrar Gerritsen. However, it is not necessary to reconcile that matter because Mr Price accepted that substantively “it is the defendant [who] has been pushing for the capping of costs in this matter” [16] .
Formally, Mr Price made an oral application on behalf of the defendant seeking cost capping orders pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.4 and Civil Procedure Act 2005 (NSW) (CPA) s 98(4) in accordance with marked for identification (MFI) 1 (application) [17] . I noted the application was opposed by the plaintiff who contended inter alia that the question of any capping of costs should be dealt with only at the final hearing and that the parties should be directed to return to mediation/informal settlement conference [18] .
I recorded the affidavits read by the respective parties on the application (including the affidavit evidence filed thus far) which was read without objection. Counsel then made certain oral submissions. I raised with them a number of issues, made directions seeking clarification on a number of issues including costs and provided them with an opportunity to briefly supplement the submissions addressing particular aspects of the interlocutory cost capping jurisdiction invoked.
Subsequently with the submissions provided, Mr Price also in seeking the orders, relied upon the inherent jurisdiction of the Court [19] .
Relevantly, the position in respect of costs is that the plaintiff has a conditional costs agreement with his solicitors pursuant to s 181 Legal Profession Uniform Law (NSW) (LPUL). The conditional costs agreement is said to contain an uplift of 25% to be applied to professional fees if the plaintiff obtains a successful outcome in the proceedings. On 29 May 2025, Mr Corbould estimated that the plaintiff’s costs and disbursements calculated on an indemnity basis, up to and including the completion of a mediation totalled $37,400 (being solicitors fees of $25,000, an uplift of $6,250, and disbursements of $2,750 and GST).
On 12 September 2025, Mr Miller estimated the defendant's costs calculated on an indemnity basis up to and including the completion of the mediation to be approximately $25,000 (more specifically $25,250 being solicitor’s costs plus GST $15,950, disbursements $500, and counsel's fees plus GST $8,800).
On 6 November 2025, Mr Miller estimated that the defendant would incur further costs on an indemnity basis of between $25,000-$30,000 to the completion of a one-day hearing.
On 17 November 2025, further cost details were provided by email to my Associate as follows.
For the plaintiff Ms Stratford confirmed that the plaintiff’s actual costs to date are $44,416 incl GST of which $1,351 (a filing fee) has been paid leaving $43,065 remaining unpaid (being professional fees $30,000, uplift $7,500, counsel’s fees $550, disbursements $1,100, GST $3,915). She estimated that the plaintiff’s total costs, up to and including a one-day hearing to be $83,851 incl GST (professional fees $40,000, uplift $10,000, counsel’s fees $20,000, disbursements $5,000, GST $7,500 filing fee $1,351).
Mr Miller indicated that the defendant’s solicitor’s costs to date are $13,500 incl GST (unpaid) and counsel’s costs to date are $4,500 incl GST (paid) (totalling $18,000 incl GST). He noted that since the mediation, they had undertaken additional work including appearances before the Registrar and myself, preparation for that hearing and preparation of written submissions. He indicated that counsel had not made a final decision as to any whether any of those costs will be charged and is contemplating that they would not be, in light of the size of the estate. Otherwise, the fees were in accordance with his 6 November 2025 affidavit.
It is unnecessary for me to recount all the details of the plaintiff's claim and the defendant’s response to it. Briefly, the plaintiff's claim for provision and the parties’ financial circumstances are as follows.
The plaintiff is currently renting and (seemingly) lives alone. I infer Isabelle lives with her mother. The plaintiff is employed as a branch manager with McDonnell Bros. As at 16 July 2025, he had a gross fortnightly income of €1,686 (approx. AU$3,001) and fortnightly expenses including rent total AU$2,011.
He has minimal assets including a car, monies in a bank account and a television, which in July 2025 approximated AU$16,650. He had liabilities totalling approximately $20,358 including a personal loan and a credit card with the Bank of Ireland.
His claim for provision is specified as being:
(a) payment of his debts; (b) a deposit for a home for himself and Isabelle (estimating a sum equivalent to €40,000); (c) a two-bedroom home for himself and Isabelle in the Middleton and Tallow area where he could be close to his work and to her - estimated to be a cost of approximately €234,000; and (d) a fund for contingencies in life.
The defendant lives with Chad, her children and mother.
She is employed full time as a nurse with gross fortnightly income of approximately $3,711. The family’s fortnightly expenses total $4,960. Neither the plaintiff's mother (who receives an aged pensioner) nor daughter (who works casually as a dental nurse and nanny earning approximately $600 per week) contribute financially to the household.
The defendant and Chad own joint assets. This includes:
a property at Gymea $1.7 million;
a horse float $25,000;
three motor vehicles $110,000;
moneys in bank accounts $35,000; and
Aware Super entitlements $234,420.
Their liabilities are as follows:
mortgage secured over the Gymea property $750,000; and
credit card debt, personal loans and other monies owed $26,952.
The defendant provides financial assistance to her daughter and her mother.
THE COURT:
1 NOTES, that the estate of the late Barry Lord, who died on 28 May 2024, has been distributed.
2 NOTES, that there has been no grant of probate or administration in respect of the deceased’s estate as a grant was not necessary to administer the estate.
3 NOTES, that the plaintiff resides in Ireland.
4 NOTES, that the notional estate of the deceased (being the distributed estate), has a value of $135,674.48.
5 NOTES, that the defendant’s estimated costs, on the indemnity basis, to mediation were $25,000 including GST.
6 NOTES, that the plaintiff’s estimated costs, on the indemnity basis, to mediation were $37,400 including GST (but which included an uplift of $6,250 plus GST).
7 NOTES, that the defendant’s further costs, on the indemnity basis, to the completion of a 1-day hearing are estimated to be $25,000 to $30,000 including GST.
8 NOTES, that if the matter proceeds to a final hearing, the total costs of the proceedings will substantially, if not entirely, exhaust the estate.
9 ORDERS, pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) and/or rule 42.4 of the Uniform Civil Procedure Rules 2005 (NSW), subject to further order, that the maximum professional legal costs and disbursements that any party may recover from any other party, or out of the deceased’s estate in these proceedings is specified as $20,000.
10 ORDERS, pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) and/or rule 42.4 of the Uniform Civil Procedure Rules 2005 (NSW) that an executor, administrator or other representative of the estate of the deceased who may claim an indemnity from the estate for professional legal costs and disbursements reasonably and properly incurred may not enforce that claim beyond the amount of $20,000 without the leave of the Court, upon showing cause to the Court why any greater sum should be allowed.
Much of the time associated with the hearing on 7 November 2025 was devoted to counsel informing me of a degree of the background of the case and the nature of the case, noting and reading evidence, and attending to procedural matters and the making of directions.
The submissions were conducted at a relatively high level including attempting to establish whether there were any precedents of interlocutory family provision costs orders. Mr Price provided me with a few authorities, which he briefly addressed and to which Ms Wilcox briefly responded. Because the matter was of some complexity I indicated to Ms Wilcox (who had not previously appeared in the matter) that whilst I would be grateful to hear from her, I did not expect her to be immediately ready to advance every argument that she might wish to put, and that there would be an opportunity for written submissions [20] .
Essentially the supplementary written submissions of counsel have covered the matters raised orally during the hearing and for that reason I will record the parties’ submissions by reference to the written submission documents.
Mr Price’s written submissions (DS) regarding the legal position covered a number of the matters that I have outlined above. In summary I note he contended:
It is undesirable that the power to limit or cap costs is exercised retrospectively [21] , rather applications for cost capping should be made early [22] for procedural fairness [23] so that the parties can understand the quantum of the estate available for distribution that being a fundamental component of the purpose of the jurisdiction [24] .
In small estates, the ability of the parties to mediate can be substantially impaired where proportionately significant costs are claimed and there is uncertainty as to what costs might ultimately be recovered [25] .
The costs power is a broad discretionary one that must be exercised judicially, taking into account factors directly connected with the litigation [26] .
UCPR r 42.4 is a broad discretionary power not subject to implicit limitations [27] , nonetheless, the purpose of a cost capping order is to further the civil litigation overriding purpose and the requirement that the Court follow the dictates of justice [28] , and proportionality is a fundamental touchstone in the exercise of the power to make a costs capping order [29] .
Caselaw bearing upon “fixing or capping costs” after the event of the final hearing provides a principled approach from which assistance can be derived in approaching cost capping at an interlocutory stage [30] .
The Courts have not sought to specify what constitutes a “proportional” amount of costs. Instead, qualitative language has been used. Consideration is to be given to whether an amount is “reasonable” in comparison to the value and importance of the subject matter in issue [31] . He noted that whilst reasonable minds may differ as to what is proportional or reasonable, that is not a basis for refusing to exercise the jurisdiction [32] .
In the instant case, Mr Price identified the following factors the Court should consider in determining to whether to make a capping order:
(a) The fact that the plaintiff resides in Ireland, and has done so since 2020;
(b) The fact that the plaintiff knew the deceased’s estate was very small in March 2025, before commencing the proceedings (and misstated the effect of the correspondence in his affidavit);
(c) The fact that the plaintiff entered into a “no win – no fee” costs agreement and protected himself from liability for costs to his own solicitors;
(d) The size of the estate before the costs of any party is $135,674.48;
(e) The plaintiff and the defendant are each children of the defendant;
(f) The “apparent” strength of the plaintiff’s claim, including:
(i) The sparse nature of the plaintiff’s evidence;
(ii) The existence of the dispute over the nature of the relationship between the Deceased and the Plaintiff; and
(iii) The deceased made gifts to the defendant during the deceased’s lifetime;
(g) The apparent financial position of each of the parties;
(h) It is highly likely (if not inevitable) that the defendant has no prospect of recovering any costs from the plaintiff if the proceedings are dismissed;
(i) The costs incurred to date, “work in progress”, and the costs estimated to the completion of a hearing;
(j) The work that has been undertaken and the work that is still to be undertaken;
(k) The proportionality of the costs incurred up to mediation compared to the amount potentially available for distribution; and
(l) The proportionality of the total costs likely to be incurred to completion of the matter compared to the amount potentially available for distribution.
- The costs of the parties to the completion of mediation were estimated at $62,500. That amounted to about 46% of the estate. Such costs are, of themselves, out of proportion to the size of the estate. If the matter proceeds to a final hearing, the total estimated costs are $120,000 (being over 88% of the estate).
- Ordinary, reasonable members of the community would consider it inappropriate (at best) that legal costs might consume more than 30% of an estate. The judiciary has displayed the same view in the cases [identified above].
- Beyond being an eligible person, the plaintiff’s case is not objectively strong. In circumstances where any order for provision is likely to be minimal (if any order is made at all), the costs of both parties payable from the estate have material, if not decisive, significance in any further attempt to mediate the proceedings.
Ms Wilcox’s written submissions (PS) also addressed a number of the cases that I have outlined above. She did not contend that there are any other relevant heads of power to permit cost capping than those relied upon by the defendant [35] . She contended that capping orders should only be applied at an interlocutory stage in family provision proceedings in “exceptional” cases of which this was not one [36] .
Further, (in summary) she contended:
There is little explanation as to the circumstances in which the Towill capping order was made and the circumstances of that case appeared to be (materially) distinguishable from this case [37] .
Cost capping has generally been dealt with more by the Court at the end of proceedings when the result of the litigation is known and should not lightly be made at an early stage of the proceedings before all issues are known and the result determined [38] .
The discretionary power to vary a capping order in the future counted against the making of an order now as it would not provide certainty, it “may cause confusion, and may impact on either party’s ability to continue in the proceedings” [39] .
The amount to be capped may depend upon the position of the estate at the end of the proceedings [40] .
The nature of family provision proceedings uniquely raise different issues with respect to costs [41] including “the overall justice of the case” which, whilst a consideration regarding costs capping on a final hearing, would be “unusual” (difficult to gauge) because “of the uncertainty that exists as to the future conduct of the proceedings (and whether any unforeseen complexities arise) and because ahead of the final hearing and consideration of all evidence (including oral evidence) it must be difficult to appreciate fully the overall justice of the case” [42] .
The size of the estate is of relevance, but even if (as here) the estate is small, it is not the only determinative factor [43] .
The nature of the costs incurred are relevant and may justify an order where the costs incurred are: alarming or disproportionate [44] ; higher than expected for a “normal family provision case” [45] ; materially discrepant as between each party [46] , on one side materially increased by the other [47] ; or consequent upon inappropriate behaviour of the parties [48] . However, a capping order is not warranted here in circumstances where the parties have “spent roughly equal amounts” in respect of the litigation, one side has not acted in a way to materially increase the other’s costs, the costs are not unreasonable, nor outside what is appropriate [49] , nor caused by inappropriate behaviour [50] .
Other considerations involve the importance and complexity of the matter, and whether it would be more appropriate to have their costs dealt with in another way [51] and proportionality [52] .
The concept of cost capping is described in various ways in different jurisdictions and sometimes within the same jurisdiction.
In New South Wales (NSW), the statutory provisions refer to costs capping as a “maximum costs” order. In some jurisdictions notably Victoria [54] , but also in NSW [55] terminology of a “protective costs order” is also used. One needs to be precise about what is being addressed because of variations of terminology. In NSW a form of “protective costs order” has various meanings in particular for example it is used to describe the type of costs order where the Court has power to appoint a tutor on terms that protect the tutor from personal liability for costs [56] . In England, distinctions are made between a “protective costs order”, which protects a party against liability for the other party’s costs on the one hand and a costs capping order on the other, those being two distinct types of orders whereby the court may limit the costs payable [57] . Nonetheless, the range of circumstances in which costs orders are sought may involve both a protective and capping aspect to the orders sought and made [58] .
Notwithstanding that the NSW provisions use terminology of “maximum costs”, it is commonly known as a form of “cost(s) capping” and for convenience I will generally use that terminology or “capping”.
There is a distinction between capping costs and fixing costs. Fixing costs obviates assessment but nonetheless acts as a cap. Capping costs does not necessarily obviate assessment, but may practically have that effect (e.g. if it is self-evident that the likely amount of costs if assessed, would on any view of it exceed the capped amount, the other party may agree to pay a capped amount removing the need for any cost fixing order and assessment [59] ).
The distinction was helpfully explained by Ball J in Baychek [60] as follows
… Where the court makes an order capping costs, the effect of the order, if it is to have any effect at all, will be to limit the amount that the costs applicant can recover on assessment to the amount of the cap. To put the point another way, the cap will normally be fixed at an amount that is less than the amount that it might reasonably be expected that the costs applicant will recover on assessment. Were it otherwise, there would be no point in fixing the cap in the first place. If the court makes an order fixing costs at the cap – and the cap is a true cap – the effect of that order is to permit the costs applicant to recover costs without the need for assessment but still to limit the amount that the costs applicant might otherwise expect to recover on assessment. The advantage, then, of fixing costs in this way is that the amount fixed still operates as a cap but it does so in a way that makes assessment unnecessary. In doing so, it gives effect to the overriding purpose identified by the CPA s 56 – that is, to facilitate the just, quick and cheap resolution of the proceedings. In fixing costs as a cap rather than as a substitute for an assessment, it seems to me that the court should take into account the same matters that it takes into account in determining an appropriate cap. That is, what the court must be satisfied of is that the costs are excessive having regard to matters such as the nature of the case, the size of the estate and the amount that the costs applicant has recovered and could reasonably be expected to have recovered at the time proceedings were commenced. If the court is satisfied that the costs are excessive, then it will need to determine what amount to fix. But, as I have said, the nature of that enquiry seems to me to be no different from an enquiry concerning what amount to fix as a cap. I return to this matter below.
Proportionality in law differs according to context. For example, it has particular meaning in constitutional law [61] .
In some cases, the proportionality consideration might be considered from a perspective of costs to the value of the result [62] . CPA s 60 references proportionality of cost to the importance and complexity of the subject matter in dispute [63] . The greater the number of things that are desired or required to be proportional, the more difficult it may be to achieve ideal proportionality.
However, ideal justice is not necessarily or even principally a relationship between a fixed object of costs and other litigious aspects [64] . The factors relevant to the exercise of the discretion to make a capping order will vary depending on the nature of the litigation, and the circumstances of the case. Indeed, as has been observed, the factors that may be relevant to cases in which the issues might be simple or the matter in dispute of small or low monetary or other value, where disproportionality of costs is the critical concern, will differ or have different weight to the factors that may be relevant to other litigation where those matters are larger or considered more priceless [65] .
Provisions regarding capping of costs have been enacted and operate in various jurisdictions both in Australia and the UK. The provisions in each jurisdiction vary in content. They have emerged in contexts involving a legislative response to concerns regarding disproportionate litigation costs and serve various purposes. Broadly speaking they contain provisions that empower the court to make a capping order, set out considerations that may be taken into account, sometimes indicate what costs are to be excluded from any such capped amount [66] , provide for the court to make directions regarding capping determinations and for variation of such orders.
Capping orders (at least by statutory provision) were first introduced in Australia and the Federal Court in 1993 [67] . In the UK, case management powers have for some time been held to justify capping. Particular provisions were introduced with the reforms of the introduction of the UK Civil Procedure Rules in 1998.
In NSW, costs are in the discretion of the Court, subject to CPA, rules of Court and any other Act. The Court has full power to determine by whom, to whom and to what extent costs are to be paid and may order that costs are to be awarded on the ordinary basis or on an indemnity basis. Ordinarily, if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs [68] . Generally, costs payable to a party under an order of the Court are to be assessed on the ordinary basis [69] . The Court is empowered, pursuant to s 98(4)(c) CPA, to make a specified gross sum costs order instead of assessed costs.
In NSW, the specific power in the Court to cap or order “maximum costs” was introduced in January 2000 [70] .
The Explanatory Note accompanying the amendment is quite unilluminating [71]
The object of the amendments contained in paragraph 10 is to enable the Court to specify the maximum costs that may be recovered by one party from another, with certain necessary exceptions.
Notwithstanding the introduction of the capping power, its initial use was rare. Indeed, at least as at the time of the August 2005 commencement of the civil procedure reforms in the CPA and UCPR, there not did not appear to have been any cases in which provisions of that Rule had been discussed or applied [72] .
The current capping power UCPR r 42.4 introduced in 2005 is in terms expressly replicating the original provision (SCR Pt 52A r 35A).
The Court of Appeal has not readily embraced opportunity to definitively state whether and to what extent the provisions of s 98 CPA or indeed its inherent jurisdiction may be used as a source of power for prospective costs capping [73] . It is not hard to find judgments in which the provisions of s 98 CPA generally are coupled with UCPR r 42.4 as being a source of capping power.
In any event the debate is not of great significance, because at an interlocutory stage, undoubtably UCPR r 42.4 enables capping of costs.
UCPR r 42.4 provides as follows:
42.4 Power to order maximum costs
(1) The court may by order, of its own motion or on the application of a party, specify the maximum costs that may be recovered by one party from another.
(2) A maximum amount specified in an order under subrule (1) may not include an amount that a party is ordered to pay because the party--
(a) has failed to comply with an order or with any of these rules, or
(b) has sought leave to amend its pleadings or particulars, or
(c) has sought an extension of time for complying with an order or with any of these rules, or
(d) has otherwise caused another party to incur costs that were not necessary for the just, quick and cheap--
(i) progress of the proceedings to trial or hearing, or
(ii) trial or hearing of the proceedings.
(3) An order under subrule (1) may include such directions as the court considers necessary to effect the just, quick and cheap--
(a) progress of the proceedings to trial or hearing, or
(b) trial or hearing of the proceedings.
(4) If, in the court's opinion, there are special reasons, and it is in the interests of justice to do so, the court may vary the specification of maximum recoverable costs ordered under subrule (1).
Guidance as to the operation of UCPR r 42.4 has been provided in various cases but in particular by the Court of Appeal in Delta - CA [74] .
Basten JA noted as a matter of construction, the rule, in its terms, is not limited to purposes identified in caselaw in other jurisdictions and restrictions on its operation must be identified by reference to its language and the context in which it appears and the jurisdiction in which it is invoked, rather than by reference to extraneous materials [75] .
The differences in language from other jurisdictions cautions against identification of purpose and unqualified application of caselaw from such jurisdictions [76] .
His Honour observed that that the structure and context of the UCPR provide no assistance in considering the functions and scope of the capping power in UCPR r 42.4 [77] .
Nonetheless, Basten JA commented regarding purpose that the relationship between UCPR r 42.4 and the case management provisions of ss 56-60 CPA (partly reflected in r 42.4(3)) “supports the view that a costs capping order may properly be made to “curb the tendency of one or all parties to engage in disproportionate expenditure on legal costs”, and to maintain “[p]roportionality of costs to the value of the result” [78] .
However, Basten JA qualified his comments by observing that it did not follow that those are the only purposes or circumstances in which an order can be made, but rather they reflect the concerns which arose in Sherborne [79] . Beazley JA agreed on that point [80] . In litigation where there is a public interest nature in the proceedings, that will be a matter directly relevant to the propriety of a capping order [81] .
In Caroona Preston CJ observed that [82]
Ensuring proportionality of costs is one means of facilitating access to justice and alleviating the potentially stultifying effect on the proceedings if the capping order is not made is another means.
Access to justice arguably has greatest significance in the context of a plaintiff whose financial resources are minimal compared to the defendant, and whose claim has an element of public interest but may be stultified by the risk of an adverse costs order.
Specifically, in Delta - CA the Court of Appeal noted that where a broad discretionary power is conferred on a court, it is important that the full range of permissible considerations is identified and that limitations which do not find reflection in the language of the rule not be imposed [84] .
The Court must seek to give effect to the overriding purpose of the facilitation of the just, quick and cheap resolution of the real issues in the proceedings when it exercises the UCPR r 42.4 power [85] , even if the application of the various criteria in the case management provisions of ss 56-60 CPA are not without difficulty [86] .
Leaving aside more general purposes of the power within the context of litigation, from the perspective of the individual parties, the purpose of a capping order may be varied but includes limiting the potential liability of a party in the event that it fails to obtain an outcome sought. In such a case a balancing consideration is that it will limit that party’s ability to recover costs it has expended in successfully pursuing or defending the proceedings [87] .
Vitally, the very nature of the power itself means that exercise of the power involves some identification or conception of the likely final costs order [88] .
In some cases, there are calls for addressing what costs may be recoverable as between solicitor and client [89] . However, ordinarily the UCPR r 42.4 capping power is not intended at least in its terms to cap costs as between solicitor and client but rather costs that may be recovered by one party from another or from an estate [90] .
Dal Pont notes that [91]
the jurisdiction rests on the court’s ability to properly assess the costs the parties ought reasonably to incur, in view of the nature of the proceedings, the amount or interests at stake, and the issues that are likely to arise. Unless the court is positioned to make this assessment, costs capping in this context is inappropriate [92] , for it would hardly be punctuated by the justice of the case.
Procedurally, the following may be noted:
the initiative for consideration of an interlocutory cost capping order is not limited to action of the parties, rather the Court may of its own motion, raise and address the issue [93] ;
there are considerations which favour the application or matter (if Court initiated) being considered at an early stage including so parties are alive to the risk at an early point that beyond certain limits they may have to bear their own costs – win or lose [94] ; though this is subject to the risk that if issue is addressed too prematurely an assessment of likely costs that may be incurred will be difficult;
the party or parties seeking the capping order must lay an evidentiary foundation for the application [95] , including reasons for any asserted disproportionality of costs [96] ;
capping must be explicable according to legal principle [97] ;
there is no requirement that the order is limited to a single party, it may be “unidirectional, bidirectional or multidirectional” [98] ; and
the capping power is not limited to orders merely expressly addressing costs but is attended by an ancillary power to make directions to facilitate the just, quick and cheap progress and disposition of the proceedings [99] .
Dal Pont observes that as the relevant provisions furnish no indication as to the process or standard the Court should adopt in prescribing the maximum costs, the matter rests on the proper exercise of judicial discretion [100] .
Dal Pont goes on to state
Moreover, that a related object of costs capping is to arm a court to limit the costs exposure of parties engaged in litigation that involves less complex issues and recovery of moderate sums of money [101] suggests that proportionality has some role to play in…quantifying the cap. The more complex a matter, the more difficult will it likely be to accurately assess the proportionate costs the parties ought reasonably expend [102] ; and…the greater the damages claimed, ‘the greater in absolute terms will be the amount of legal costs that could reasonably be regarded to be proportional’ [103] .
Nonetheless in NSW, conceptually and in respect of quantum, it is clear that the exercise of the power:
is of a discretionary kind, both as to the making of the order and the amount of any sum fixed with the two stages being difficult to separate [104] ;
involves consideration of the future litigation from the perspective of each of the parties to the litigation or affected parties which needs to be addressed separately, and the likely consequences balanced [105] ;
will depend upon the total mix of factors relevant to the discretion and the weight given to such factors [106] ;
involves not merely an evaluative judgment, but one which will encompass a range of possibilities, rather than a binary choice [107] ;
has no set range and indeed costs may be capped at “nil”, subject to any statutory exceptions [108] ; and
is (if UCPR r 42.4 is used) expressly subject to some limits - specifically amounts referable to certain conduct of parties is excluded including amounts that a party has been ordered to pay another party by reason of failures to comply with the rules, amendments, indulgences leading to extensions of time or otherwise caused a party to incur unnecessary costs inconsistent with the just, quick and cheap mandate [109] .
Considerations that may be taken into account include (in part by analogy to other cost powers) the extent of costs actually incurred, the circumstances of the time at which they were incurred, whether they were reasonable in those circumstances and what would have been a reasonable amount to have been incurred [110] .
Capping is inherently interlocutory, and capable of being the subject of a costs variation order if need be. Nonetheless the use of UCPR r 42.4 is intended to have a semi-final effect at least in a practical sense, in that the power of variation is qualified by reference to it being in the interests of justice to make a variation order and the requirement for there being special reasons to do so [111] .
Reasons which might lead the court to ultimately vary an interlocutory costs capping order include, for example, a material change of circumstances [112] .
Family provision legislation evolved generally and in NSW in 1916 [113] in a context of societal debate regarding injustice in testamentary provision. The context included concern for protection and a recognition of women’s rights in their position as widows, redressing the imbalance, at least in part, caused by the demise of the common law right of dower and public prominence of issues of injustice arising in a number of cases from the vagaries of testators leaving Wills making no provision or inadequate provision for persons to whom they had a moral obligation to provide [114] .
The initial statutory purposes have not remained static. Societal change and periodic review of legislation led in NSW to two revisions of the family provision regime namely under the Family Provision Act 1982 (NSW), commencing in September 1983 and the Succession Act (Chapter 3) commencing in March 2009.
The legislation may be seen as a response to societal concerns and broadly speaking family provision legislation proportionately serves to subject freedom of testamentary disposition to discretionary curial intervention in certain classes of case, by reference to assessment of adequacy of provision for the proper maintenance, education or advancement in life of an eligible person [115] .
Specifically, the family provision jurisdiction in permitting discretionary curial intervention impacts the entitlement of beneficiaries of the deceased’s estate (whether by testamentary provision or on intestacy), only so far as is appropriate to address each case of alleged inadequacy of provision on its terms and does not extend to authorising general redistribution of estates by reference to other notions of general ‘fairness’ or otherwise.
Thus, in the context of costs fixing to address a case of grossly disproportionate family provision costs, it has been recognised that one purpose of the jurisdiction is to protect (or at least appropriately balance) the entitlement of beneficiaries of the estate. In Underwood v Underwood Jones J stated [116] :
Every step taken in pursuit of, or in resistance to, a claim diminishes the value of the estate and leads to uncertainty as to the level of entitlement. A rash claim by one applicant can sometimes spark a defensive response by other applicants…Consequently, for every action and reaction in a proceeding of this kind some part of the costs is borne by the estate and its value is thereby diminished. That cost is often paid by beneficiaries who played no part in the cost generating activity.
In Alexiou, Lindsay J stated [117]
In my opinion, the Court’s inherent jurisdiction to make costs orders extends to orders regulating costs as between lawyer and client, at least in family provision proceedings where the interests of justice mandate a limit on the costs of lawyers recoverable from their clients so as to maintain the integrity and utility of the proceedings as a means of making provision for an eligible person in need and to preserve an estate for beneficiaries beyond what is necessary to make that provision.
Costs of family provision proceedings are a necessary consideration of the exercise of the jurisdiction to make a family provision order not least because the cost of an executor or administrator in defending the proceedings are ordinarily a testamentary expense and the Court must have some conception of the size of the net estate (actual or notional) in determining such claims.
The purposes of the jurisdiction may be frustrated by or miscarried due to various factors including the impact of legal costs. This is especially so if the liability of a successful applicant for costs either to his or her own legal representatives or another party exceed the provision ordered for the applicant [118] .
The current legislative framework for making costs orders in family provision cases includes not merely the CPA (incl s 98) and the UCPR (incl Pt 42), but also the SA (especially s 99), the Trustee Act 1925 (NSW) (especially s 59) and Practice Note SC EQ 07 – Probate and Family Provision List (PN EQ 7).
The expectation of the Court in PN EQ 7 outlining guidance in family provision proceedings is a significant aspect which informs the purposes and framework for making costs orders in family provision proceedings and cannot be underestimated. This includes:
a reminder that the Court expects that the resources of an estate and of the Court will not be used in a manner that is out of proportion to the size of the estate or any provision that may be made [119] ;
early verified disclosure of estimated costs including in the case of plaintiffs whether any aspect of a costs agreement as between the client and the relevant solicitor involves any costs uplift factor [120] ;
directions for provision of information to be made available at the soonest practicable date so that parties may make an early realistic assessment of their respective cases [121] ; and
notice that orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the net distributable value of the estate (excluding costs of the proceedings) is less than $1,000,000 [122] .
Thus, the legislative and procedural framework within which family provision proceedings are routinely conducted
puts all participants in the proceedings on notice, from the outset, that a central concern of the Court is that costs be proportionate, fair and reasonable so as to maintain the integrity and utility of the jurisdiction exercised by the Court [123] .
Particular aspects of family provision costs differ from ordinary litigation and bear upon the question of costs orders generally and in particular costs capping orders. These include at least the following.
First, representative costs in defence of family provision proceedings, unless unreasonably incurred or incurred in circumstances in which the representative has in substance acted for his or her own benefit rather than for the benefit of the estate, will ordinarily fall within the description of being a “testamentary expense” and for that reason be payable out of the estate, calculated on the indemnity basis [125] .
Secondly, whilst the default rules in UCPR r 42.1 and r 42.20 UCPR apply to family provision proceedings [126] family provision costs (in particular regarding the costs of applicants) tend to depend upon the “overall justice of the case” [127] , which though “not remote from costs following the event” [128] nonetheless calls for consideration of additional “liberality and discrimination” in exercise of the costs discretion and whether to override the usual rule [129] .
Thirdly, it is not uncommon, though atypical, for an unsuccessful applicant not to be ordered to pay the defendant’s costs where the applicant is or would become impecunious and the claim for provision was reasonable or borderline [130] .
Fourthly, generally in litigation impecuniosity of an unsuccessful party, without more, is no reason to deprive a successful party of an order for costs. However, the impecuniosity of an unsuccessful applicant for family provision is of greater than usual relevance, at least because adverse costs orders might alter the basis on which the claim for provision was rejected, and thereby cause or justify a further application [131] .
Fifthly, it is notorious that predictability of the outcomes of family provision claims is not quantifiable by the parties’ legal advisers prior to judgment with anything like the degree of certainty that applies in other areas of civil law [132] .
Sixthly, “although family provision claims can only succeed or fail, those binary outcomes tend to conceal difficult and even ‘borderline’ questions of the nature of the evaluative and discretionary judgment of such claims”. That is one reason for the more liberal approach to costs. [133]
Since the inception of family provision litigation, the Court has expressed concern regarding the level of costs incurred in such claims [134] .
It has been said that an order fixing costs in family provision proceedings should not be seen as anymore exceptional than an order for capping of costs and that the nature of that enquiry in respect of both is not materially different [135] . Further that the principles relevant to costs capping are also relevant to the discretion of whether to award costs at all if part of the costs are already included in the amount of the judgment [136] .
Since the turn of the century, the last 25 years have seen several trends of costs capping within the family provision jurisdiction.
Broadly speaking, in the first decade of this century, concerns regarding disproportionate costs in family provision proceedings were characterised by various cycles of legislative reform and judicial response.
In January to March 2000, the initial legislative capping provisions [137] , albeit commencing two months prior [138] , were a part of the same amendment to the Supreme Court Rules, namely the overriding purpose of the Court to facilitate the just, quick and cheap resolution of the real issues in proceedings [139] .
In the early 2000s, readiness of judges to consider cost capping was evident [140] . The initial judicial response was characterised to a large degree by the pragmatism of Young CJ in Eq in a number of decisions emphasising imperatives of proportionality of costs and duties of practitioners in that respect [141] and limiting costs to no more than the amount of the legacy recovered [142] . This was a type of “award/costs parity rule of thumb”. This approach was contemporaneously adopted by a number of other judges in family provision or other statutory property adjustment claims [143] and indeed persisted in by Justice Young in later years [144] .
In 2004, the Court of Appeal recognised assessment of costs must bear a reasonable relationship to the value and importance of the subject matter in issue [145] . However, in Jvancich it was observed that it had not been practice in Australia for the Court to fix an amount of costs (in context of a faint submission based on observations by Young CJ in Eq in Moore that “judges will not allow more than $35,000 in costs to any party in this type of case unless there is some special justification”) [146] .
Dal Pont, noting the first instance capping decisions (including what I have described as the award/costs parity rule of thumb) prior to Jvancich comments that the Court of the Appeal (in Jvancich) “subsequently sought to constrain the scope of this practice — fearing that courts are rarely positioned to know whether or not costs to or in excess of a suggested cap were reasonably incurred” [147] .
(a) proportionality as between the costs awarded and the legacy ordered to the plaintiff, the costs incurred and the size of the total estate and notional estate the costs in the instant litigation on the one hand and other family provision litigation of a similar type [178] ; (b) the conduct of the parties [179] (see below); (c) whether the magnitude of the costs amongst other matters would put at risk the ability to give effect to the deceased’s very clear and long-held testamentary intentions that a defendant or other party would receive certain property [180] .
(a) disproportionate to sums of money in issue between parties due to party actions (e.g. fuelled by personal animosity, or where parties are carried away by the desire to vindicate their positions publicly in a court of justice) [181] ; (b) much higher than expected for a “ordinary” or “standard” family provision case” [182] ; (c) inexplicably materially discrepant as between each party [183] ; (d) materially increased by one party or the other or by a particular aspect of the litigation [184] , or consequent upon inappropriate conduct of the parties (e.g. vindictive or disruptive conduct) [185] - noting that depending upon the nature of the conduct, the approach to capping may not be precisely the same as the test to be applied in considering whether a party should be deprived of his or her costs because of misconduct [186] ;
(a) as part of a costs inclusive family provision order [194] ; or (b) by reference to the amount to be realised from sale of property appropriately apportioned [195] ; and
capping orders may be supplemented by directing that costs not include expenses for certain items (e.g. immaterial affidavits) [196] .
The uniqueness of each family provision case in which capping has been considered and the relatively very small sample size (seemingly no more than about 30 or so cases in which capping orders have been actually made consequent upon the final hearing of a family provision case) defy or at least powerfully count against any meaningful statistical analysis of retrospective capping orders. To the extent that anything even remotely like a tentative “trend” can be gleaned, in a number of the cases the total estate is 5 times larger than the corresponding cost caps and in a number of the cases the cap imposed is somewhere between 50% to 100% of the party’s total cost estimate. However, ultimately, I consider that very little can be gleaned from attempting any useful extrapolation from capping percentages that have appeared in those 30 or so cases.
Relevant to an assessment of costs capping is understanding of the sort of costs that might be incurred in what I hesitatingly describe as “standard case costs”.
Costs in family provision proceedings are generally approximated at two stages being (a) costs up to mediation and (b) costs through to a final hearing. This is reflected in the Practice Note which requires estimates at those stages [197] .
Obviously, the cost associated with each family provision claim will differ to some degree. Nonetheless, there is a basic threshold of irreducible core of work necessary to progress or defend any family provision claim (about which I will comment further below) and certain common aspects which have allowed judges to make some comment over time regarding such “standard costs”.
In 2013, the expectation of the List Judge at that time was that on each side, a reasonable range of costs up to and including a mediation in a sufficiently informed state to allow early resolution of claims was $20,000 to $25,000 [198] .
Currently (2025), through my review of cost affidavits in the conduct of the Family Provision List, each party’s costs up to mediation has doubled such that cost estimates are very regularly in the order of $35,000 to $50,000 (being closer to $50,000 if any defendant’s reply evidence is put on).
In some instances, there are higher estimates than even that, which might be concerning but nonetheless explicable in some cases. The Practice Note does not expressly require details of charging rates in family provision cases. In cases where costs exceed beyond the range I have indicated, the costs affidavit ought to as a matter of transparency explain the reasons for the large amount of costs whether it be dint of the complexity, the charging rates or otherwise.
43 As it does not matter about the quantum of the costs in this particular matter, I should make some general observations about costs in Family Provision Act applications. I think the position has now been reached where judges will not allow more than $35,000 in costs to any party in this type of case unless there is some special justification.
44 I know that it is very often difficult for plaintiffs' solicitors to obtain full statements from plaintiffs without spending a lot of time talking to their clients, and getting corroborative documents. This appears to me to be a major reason why costs exceed $35,000. It may be that some solicitor and client costs can be charged for this extra work, but I cannot see why such costs, even for successful plaintiffs, should come out of the estate.
The objection of the Court of Appeal in Jvancich in declining to accede to a “faint” submission based on Moore that that plaintiff/respondent’s costs should be limited to $35,000 [200] , acknowledged the obiter nature of the comments in Moore. It is evident from Jvancich that Giles JA’s concerns were the inappropriateness of a “general ceiling”, the fact that the Court was not in a position to limit costs in an informed manner and the fact that questions of reasonableness of costs and proportionality would be a matter for the assessor so far as it may properly be taken into account [201] .
In 2011, in Tobin – Costs, Brereton J expressed the provisional view (with which the parties did not disagree) that taking into account the passage of time since the judgment of Young CJ in Eq (as his Honour was then) that [202]
a two-day family provision case, at present, might incur costs on one side in the order of about $75,000.
A standard family provision proceeding conducted over a two day period with a handful of witnesses on each side could incur costs of the order of $70,000 to $80,000. A more complex case going four days may incur costs of the order of $120,000 to $140,000.
In NSW, s182(1) LPUL permits uplift fees in conditional cost agreements, but only if the law practice has a reasonable belief that a successful outcome of the matter is reasonably likely [205] and that the uplift fee does not exceed 25% of the legal costs (excluding disbursements) otherwise payable. [206] Jagot J in Kain v R&B Investments Pty Ltd [207] described this as a “carefully worked out scheme” which compensates the law practice for taking the risk of being unable to recover their costs of funding the proceedings, and potentially being liable to pay an adverse costs order against their client [208] .
Thus, it is not uncommon in family provision litigation for solicitors, pursuant to s182 LPUL, to act under a conditional fee agreement accounting for a form of uplift success fee, given the litigation “risk service” [209] they are providing.
Both in NSW and the UK there has been judicial comment regarding success fees and conditional costs arrangements. The fact of such arrangements and whether a plaintiff has any obligation to pay costs to his or her legal representatives if the claim is dismissed, may be part of the overall considerations in determining whether to make a family provision order or to dismiss a claim [210] .
Nonetheless, in 2004 in Moore, Young CJ in Eq observed [211]
… no success fees, or contingency fees, or the percentage that is allowed under the general costs rules for solicitors acting on a speculative basis is generally allowed in these sorts of cases.
…if there is any conditional costs agreement, the nature of that agreement, and its effect on the payment of the costs of the party, including any term relating to an uplift fee, should be disclosed in each affidavit of costs that is relied upon by either party.
Disclosure obligations are embedded in the Practice Note which requires the costs affidavit of the plaintiff’s solicitor both up to the mediation stage and for the final hearing to state whether there is any uplift factor included in the calculation of the plaintiff’s costs, or any agreement that provides for such an uplift factor, the quantum thereof and the terms of any such fee agreement should be identified [214] .
In December 2024, the UK Supreme Court [215] determined that a court is prevented in the UK [216] from including the payment of an uplift success fee [217] as part of a family provision order which, by other legislative provisions [218] , the plaintiff would not have been entitled to recoup under any “costs order” made in her favour. This highlights that the effect of conditional costs agreements and success fees in assessing family provision orders are obviously dependent upon the specific legislative provisions that apply in each jurisdiction.
Distribution of family wealth whilst thought by some to be a matter of privilege and private choice is recognised as a matter in which society has a legitimate interest. The notion that a State might codify or legislate provisions which impact on testamentary freedom is ancient, with various mechanisms used in Roman law to achieve social objectives regarding testamentary disposition two millennia before the first family provision legislation in the common law world addressed injustices arising from inadequacy of provision [219] .
In the same way as society has recognised that testators may lose a sense of proportion in distributing the estate, giving rise to injustice, there is also recognition that litigants may lose a sense of proportion in expenditure of legal costs in bringing or defending family provision claims.
Family provision law being sourced in statute serves the broader societal purposes striking a balance between testamentary freedom and discretionary curial intervention to address injustices of inadequacy of provision as outlined above.
The Court’s concerns regarding curbing excessive and disproportionate expenditure of costs in family provision litigation have been well-known since before the turn of the century. In 1998, the Court of Appeal in Fiorentini observed [220]
Leaving aside the impact of unaccepted settlement offers, the usual costs order may be modified if the Court is of the view that the litigation has been prolonged unnecessarily. The Court should set its face against litigation in which an estate is unnecessarily consumed in costs. Neither party should assume that the usual order will follow as of course. Both plaintiffs and defendants should be encouraged to make open offers as early as practicable in the litigation. The plaintiff who fails to do so promptly may find that none or only part of his or her costs will be ordered to be paid out of the estate. Of course a defendant is also well placed to make open offers and should do so in cases (like the present) where only the quantum of the plaintiffs claim is seriously in issue.
Poche is an example of extreme disproportion of costs to the value of the estate and outcome and represents the classic Pyrrhic victory [221] . The plaintiff’s costs (ordinary basis) and the defendant’s costs (indemnity basis) far exceeded the value of the net cash assets available for distribution and equated to 40% of the value of the total distributable estate [222] The capped costs amount being under 16.5% of his total costs and the amount of his provision and costs ($475,000) left the plaintiff with a massive deficit to the costs he had paid [223] and a shortfall of over $285,000 to the total of his indemnity basis ($760,819.80).
The statutory reforms both in civil procedure and succession law through 2000-2013 formalised, and enhanced, what many judges were already doing to ensure the just, quick and cheap disposition of the real issues in proceedings [224] . The reforms are predicated on and have resulted in a resetting of the role of parties, legal practitioners and the Court in the conduct of family provision litigation and the joint endeavour of each participant in the administration of justice [225] .
Judges (consistent with the statutory reforms and the overriding purpose and objective of just quick and cheap disposition of real issues in the proceedings, at a cost affordable by the respective parties, proportionate to the importance and complexity of the subject-matter in dispute and in accordance with the dictates of justice [226] ) actively manage and oversee proceedings so that forensic choices are not merely or even predominantly left in the hands of the parties [227] . These considerations are applicable to cost capping [228] .
In 2009, the introduction in the family provision Practice Note of a pro forma affidavit was purposely designed to elicit, at an early stage, essential information necessary to enable determination of family provision claims and, further, to emphasise the economy with which that information is to be given to facilitate the just, quick and cheap resolution of real issues in the proceedings [229] .
Importantly, the changes to the family provision Practice Note in 2013 were further directed to case management at the earliest practicable date allowing prompt mediation to avoid a recurrent issue at the time that when claims came to be mediated costs had become so relatively high that they were prohibitive to settlement. The changes did this by ensuring that there was relatively minimal but nonetheless sufficient disclosure of the nature of a plaintiff’s claim, informal production and exchange of documents and in some cases no immediate requirement for any reply evidence - all directed to parties with minimal cost making early realistic assessment of their respective cases [230] .
Parties have a statutory duty to assist the Court to further the overriding purpose, and to that effect to participate in the case management processes of the Court [231] .
Despite the concerns recited above about the increasing and disproportional costs of family provision proceedings which led to inclusion of SA ss 98(1), (2), (4)(b) and 99(2), the statutory reforms did not include costs capping.
Further, since the commencement of Chapter 3 Succession Act in March 2009, no further statutory capping provisions have been introduced. Thus far, the prospect of cost capping in family provision proceedings particularly in small estates has been left to has been left to the provisions of the Practice Note signalling to practitioners that capping orders might be made, together with comments both judicial and extrajudicial (in seminars and other forums).
In Rogic v Samaan (No 2), Kunc J made orders capping the defendants’ recoverable costs which the plaintiff was ordered to pay. His Honour, by reference to practice in the UK commended consideration of the ordering of a binding costs budget in advance of the conduct of litigation, observing that family provision litigation would especially benefit from such a scheme [235] .
Limited guidance can be gleaned from other jurisdictional areas. Capping orders at interlocutory stages in probate litigation is not infrequent. Whilst there are similarities between the probate and family provision jurisdictions and interlocutory cost capping in the probate jurisdiction is relatively common, there are significant differences between probate claims and family provision claims. The range of outcomes in family provision claims is far less predictable than probate claims where generally speaking the contest is between several testamentary documents or intestacy with the provisions for each Will or on intestacy providing known outcomes depending upon what Will (or intestacy) is ultimately established.
In some respects, property proceedings within the family law jurisdiction, which involve property adjustment according to a defined asset pool and statutory considerations is analogous to the statutory regime that applies within the family provision jurisdiction.
The Joint Select Committee on Australia's Family Law System – Second Interim Report (March 2021) included enquiry as to the financial costs to families of family law proceedings, and options (including costs capping options) to reduce the financial impact, with particular focus on those instances where legal fees incurred by parties are disproportionate to the total property pool in dispute [236] .
Very different views regarding the pros and cons of cost capping were provided by representatives of various stakeholders to the Committee [237] . The Committee considered that the capping of legal costs at a reasonable level for matters only involving the settlement of property would create significant benefits to the family law system [238] .
Some of the Committee recognised that a cap may have unintended consequences, e.g. “fewer practitioners deciding to practice in family law creating a supply shortage; a lack of incentive to settle until the cap is reached; and an incentive to settle once the cap is reached” [239] . Nonetheless the Committee noted that the proposed amendments included certain safeguards against such risks including providing that the cap does not include the costs of dispute resolution and for an increase to the cap to be approved by a judge or registrar in exceptional circumstances [240] .
Prospective costs capping, prophylactic [242] or otherwise, at an interlocutory stage of family provision costs must proceed on a legally principled basis.
What follows is a consideration of costs capping in family provision claims where that is the only relief sought. There are many claims where family provision relief is sought but coupled with other relief claims, such as probate issues, trust claims and other relief based on alleged estoppels. I expressly refrain from particular comment on cost capping in such claims where there are multiple claims for relief. Capping in such cases will need to take into account other considerations including the fact that decisions regarding capping will be influenced by the purpose(s) served in different jurisdictional areas.
Jurisdictionally, UCPR r 42.4 provides a specific and adequate basis to cap family provision costs at an interlocutory stage.
In Sherborne Palmer J commented upon the purposes of CPA s 98 (particularly s 98(4)(a)) and UCPR r 42.4 observing
33 Section 98 gathers together powers formerly given in s.76 Supreme Court Act and SCR Pt 52A r.6, r.7 and r.8. The terms of SCR Pt 52A r.6(2) – now CPA s.98(4) – indicate that the Court is empowered to do a number of different things. As the opening words of s.98(4) indicate, the Court acts under this section at the time of pronouncing a costs order, whether at the conclusion of the whole of the proceedings or at the conclusion of some interlocutory stage. In this regard, the power of the Court is exercised at a different time and for a different purpose from the power conferred by UCPR 42.4: it is exercised as part of the giving or refusal of substantive relief whereas the power in UCPR 42.4 is exercised as part of case management to ensure that disputes are resolved justly and cheaply.
The recognition evident in s 98(3) that s 98 may be used by the Court in respect of costs “at any stage of the proceedings”, expressly allows the possibility that the power serves different purposes depending on when it is used.
Further to UCPR r 42.4, I consider that the Court’s broad discretionary power under CPA s 98(1)(b) and (3) to make costs orders at any stage of the proceedings specifying by whom, to whom and to what extent costs are paid [243] also provides adequate power to cap costs at an interlocutory stage when considered with and construed in light of the guiding statutory case management principles [244] . This is consistent with a view taken by Slattery J in Allsop [245] . Costs orders pursuant to s 98 at interlocutory stages may be made “subject to further order” or indeed, pursuant to s 86 CPA may be made on such terms and conditions as the Court thinks fit [246] .
Further, I consider that s 99 SA provides another source of power to cap at early interlocutory stages. In Wheatley Ward CJ in Eq in determining to cap and fix an amount of the plaintiff’s costs expressly referenced both s 98 CPA and s 99 SA as sources of power in dealing with questions of costs consequent upon a final hearing of a family provision claim [247] .
However, there is no compelling reason to infer that s 99 SA should be construed as limited to the making of costs only consequent upon the final hearing. In its terms, it expressly provides that the Court may make orders with respect to the costs of such proceedings including costs in connection with mediations. Thus, it would apply even if the claim itself remained unresolved consequent upon a mediation. In light of its purpose, viewed in light of the 2008 legislative history, its text and context [248] , it seems to me that s 99 SA permits the making of a costs capping order during the interlocutory stages of family provision proceedings.
Despite the subsequent submission of Mr Price, there is no pressing need for me to explore the extent of any inherent jurisdiction of the Court to make such an order.
To the extent that there have been concerns in other civil litigation that cost capping or protective costs orders at interlocutory points might inhibit or stymie access to justice, it is not evident to me that that is a particular issue in family provision claims. In any event there is no evidence that there is any such risk in this matter.
Cost capping, when ordered, has been applied at the end of proceedings when the result of the litigation is known. Capping applications at an early interlocutory stage is, as noted, very rare.
Parties should not be surprised at the prospect that that costs capping orders may be made at early interlocutory stages in family provision proceedings. Procedural fairness considerations must be viewed in light of clear signal by the Court, not least by dint of two decades of Practice Notes expressly foreshadowing the prospect of costs capping in such proceedings. In any event as has been observed by Lindsay J [249]
The procedural framework within which family provision proceedings are routinely conducted puts all participants in the proceedings on notice, from the outset, that a central concern of the Court is that costs be proportionate, fair and reasonable so as to maintain the integrity and utility of the jurisdiction exercised by the Court.
The reason for the absence of prospective cost capping applications in family provision claims is not entirely clear. It cannot really be for the reason of the difficulty of estimating the likely costs to be incurred nor the size of the estate (or property susceptible to being designated as notional estate). Those are matters which by force of the practices that operate in the jurisdiction are required to be estimated and disclosed at an early point of time. It may be as Dal Pont suggests that mindful of the fact that the capping jurisdiction can be exercised at the final hearing, practitioners have generally preferred to wait and see the quantum outcome of the claim.
However, whatever the reason for rare interlocutory applications to prospectively cap family provision costs, it has not been due to the absence of initial [250] and more recent judicial encouragement that the question should be dealt with at an early stage in proceedings [251] .
The notion that costs capping at an interlocutory stage is inappropriate as lacking certainty or causing confusion, is doubtful and I reject it at least in those terms. On the contrary, I consider that interlocutory cost capping would ordinarily provide the parties and legal practitioners with aspects of certainty to enhance procedural fairness.
To the extent that following a capping order any unfairness might subsequently arise or become evident at the final hearing that can be ameliorated by the express power pursuant to UCPR r 42.4 to vary the capping specification in the event that there are “special reasons”, and it is in the interests of justice to do so [252] , and the Court’s powers under CPA s 98 and SA s 99 to make capping costs on terms and subject to further order on terms, enabling an interlocutory capping order to be revisited or varied consequent upon a final hearing.
Broadly speaking, I accept that case law dealing with capping costs in the context of a final hearing provides some degree of insight and guide informing an approach to costs capping at an interlocutory stage, though not necessarily so. Rather, Delta - CA has made clear that UCPR r 42.4 is a broad discretionary power not subject to implicit limitations. The provisions of s 98 CPA and s 99 SA similarly are not subject to implicit limitations.
The making of a costs capping order at an early interlocutory stages is an evaluative determination. It in many respects is a type of case management exercise as the Court balances various matters including the legitimate interests of the parties.
The considerations that inform an interlocutory cost capping decision are those directly connected with and reflected by the nature of family provision litigation. It includes but is not exhausted by or limited to proportionality as between the costs awarded and the legacy ordered to the plaintiff, the costs incurred and the size of the total estate and notional estate, the costs in the instant litigation on the one hand and on the other family provision litigation of a similar type. Other jurisdictions have embedded in legislation, particular matters that the court may consider in terms of making cost capping orders [253] . However particularly in light of the Court of Appeal’s cautionary comments in I do not consider that it is necessary to have reference to particular criteria in other jurisdictions.
Consistent with case law generally that bears upon costs capping orders and capping orders consequent upon final determination of family provision claims, the Court must be provided with sufficient evidentiary materials with which to make a principled and considered assessment.
The materials that ought to be provided to the Court include the plaintiff’s affidavit in chief, the administrator’s affidavit setting out details of the size of the estate, solicitor’s costs affidavits, and the updated estimate of costs including estimate of costs to final hearing and draft of proposed cost capping orders. Beyond that there is no need to be prescriptive about the materials that might be relevant. In any given case additional materials might or might not include any responsive affidavit to the plaintiff’s affidavit in chief.
Despite the degree of pragmatism and certainty that may commend capping by reference to fixed proportions of an asset pool, or the size of the estate (e.g. in probate cases) which occur at interlocutory stages in some jurisdictions or by reference to the “award/costs parity rule of thumb” on final hearings, there are real difficulties in that applying in family provision proceedings at an interlocutory stage.
One risk, mentioned above, is that family provision cases are a paradigm of case outcomes lacking predictability. A further risk that applies in family provision proceedings is that not infrequently the actual estate of the deceased is small, and the claim has been brought in the context of the prospect of orders being made in relation to “notional estate”. However, within the family provision jurisdiction non-estate property claimed to be the subject of a “relevant property transaction” (e.g. superannuation death benefit proceeds) does not just simply become “notional estate”. There is both detailed consideration and some complexity at least in some cases to orders designating property as notional estate being made.
Ultimately, consistent with the approach that has been taken to capping costs on a final hearing, the evaluative determination must be principled. It should not be determined by fixed percentages or rules of thumb. Rather, the quantum of any costs cap struck on an interlocutory basis is ultimately the result of evaluative determination in which having regard to the nature of the process precision or exactitude is not possible or warranted and there may be a range of appropriate capping outcomes based on the evaluative assessment. The evaluative assessment may in any given case involve a form of “broad-brush approach”.
Because in some cases a capping order might be made only using the UCPR r 42.4 power, it is susceptible to variation on a final hearing where “there are special reasons, and it is in the interests of justice to do so”, it is appropriate that I say something briefly regarding that.
It is fairly common for legislation to confer a power on a Court to adopt some course of action if “special reasons” are determined to exist [259] . Care must always be taken in adapting terminology from one statutory context to another as ultimately statutory construction will depend upon the purpose, text, context, coherence and legislative history of the relevant provision [260] .
However, with that important qualification in mind, broadly speaking the tenor of such power is to provide the Court with a broad degree of flexibility not confined by precise definition allowing an assessment to be made of what may be special having regard to the facts of each particular case which might flow from their weight, their quality and combination of factors [261] . In that light, whilst ‘special’ might in some circumstances connote something that is different from the ordinary, it may also connote something that has a distinct or particular character [262] without any requirement that the character be rare or unique [263] .
The expression ‘the interests of justice’ is also commonly used within the law in various legislation including for example cross vesting or other court transfer legislation. Likewise, as has recently been reinforced by the High Court, expressions from one statutory context cannot be readily equated or appropriated to another, even if broadly speaking the general topic from each statutory context is similar [264] .
What can be noted is that the statutory provision that requires the overriding purpose of the CPA and UCPR to be given effect to when the provisions of UCPR r 42.4 are construed [265] and case law bearing upon the proper construction and purposes of UCPR r 42.4 such as Delta - CA, that I have recounted above, will inform the proper construction of the notions of “special reasons” and “interests of justice”.
Further, having regard to the particular nature of final costs orders in family provision proceedings it is evident that the Court will have regard to the “overall justice of the case”, if and when the Court is tasked with considering at a final hearing whether to vary a costs capping order.
Next, to the extent that CPA s 98 and SA s 99 are relied upon to make costs capping orders at early stages (or in any event pre-final hearing determination) of family provision proceedings, those provisions do not contain terms that such an order may only be varied by reference to “special reasons” or specific consideration of the “interests of justice”. However, orders under those provisions may be crafted as I have noted as being “subject to further order” on terms (e.g. pursuant to s 86 CPA).
The issue of costs troubled the primary judge, who observed that the solicitor-client costs incurred by each party exceeded what would be expected in family provision claims of the kind ultimately pressed by Arthur. It is understandable that the primary judge was so troubled. As will be clear from what follows, the litigation in this matter has produced the extremely unsatisfactory result that the costs of litigation, despite being partially capped, have devoured all but a remnant of the deceased estate. That is before one brings to bear the costs of this appeal. The litigation itself has served to consume the assets accumulated over Con’s lifetime and to frustrate his testamentary wishes more effectively than any order for family provision.
Overall, I am persuaded that a costs capping order is appropriate at this interlocutory stage.
There is adequate power pursuant to UCPR r 42.4, CPA s 98 and SA s 99.
However, leaving aside the subsequent submission regarding inherent jurisdiction of the Court, the application was based upon UCPR r 42.4 and CPA s 98(4) and contended with by Ms Wilcox on that basis. The terms of CPA s 98(4) in particular focus upon fixing a gross sum of costs as distinct from capping costs. I have made particular comments above regarding the use of CPA s 98(1)(b) and (3), rather than CPA s 98(4). Thus, having regard to the way that the matter was argued, I propose to proceed upon an exercise of jurisdiction under UCPR r 42.4.
Mr Price acknowledged that the effect of such an order if made would (or might) oblige the defendant’s legal representatives to refund the defendant some money already paid for costs [267] .
Broadly speaking, I have had regard to the considerations that I have identified above as being relevant to costs capping at an interlocutory stage as they apply to the circumstances of this case. In particular I have had regard to the factual matters that each of Mr Price and Ms Wilcox have raised as being relevant to whether a capping order should be made. I have considered the matter from the perspective of each of the parties and weighed the respective consequences of making and not making a capping order.
The plaintiff, as a child of the deceased, is an eligible person. The case per se is not of significant complexity.
Nonetheless, having regard to the fact that the estate has been distributed, there will need to be consideration if the case progresses regarding whether it is appropriate to make orders designating any property now held by the defendant as notional estate.
Tentatively, I accept the plaintiff’s claim is not necessarily hopeless and that each side has some strength to their contentions as to the case outcome. However, on any view in light of the size of the deceased’s estate and the impact of costs, the parties ought to deeply reflect on the cost to themselves and the estate as to progression of the litigation.
I reject the submission an interlocutory cost capping order should only be made in “exceptional cases” and that if it was made it would not provide certainty and may cause confusion. I accept this is not a case thus far in which one side has acted in a way to materially increase the other’s costs, nor have the costs incurred resulted from what might be described as inappropriate behaviour.
The actual costs figures to date show that there is a material disparity between the costs incurred on each side with the plaintiff’s actual costs being more than double the defendant’s costs. In light of my observations above about so-called “standard” family provision costs and the obligation of parties and practitioners to appropriately moderate work that is done in relation to small and very small estates, I consider that the plaintiff’s actual costs, are already to some degree disproportionate to the size of the estate.
In light of Ms Wilcox not disputing proposed orders 1-8, I am prepared to make those orders.
Neither party has suggested that there is any amount that needs to be taken into account pursuant to UCPR r 42.4(2) and accordingly the order that I make will not be limited by that.
Ordinarily, as I have indicated above, the purpose of a capping order is not to impinge upon rights as between an individual party and their solicitors as to costs. However, in light of the proffering by the defendant’s solicitors to limit costs, I am prepared to make a notation (rather than an order) as sought by Mr Price.
As I noted at the outset, no formal order has been made for the defendant to represent the estate of the deceased. Such an order ought to be made.
The orders of the Court are as follows. The Court:
Notes that:
(a) the estate of the late Barry Lord, who died on 28 May 2024, has been distributed; and (b) there has been no grant of probate or administration in respect of the deceased’s estate as a grant was not necessary to administer the estate.
(a) the plaintiff resides in Ireland; (b) the notional estate of the deceased (being the distributed estate), has a value of $135,674.48; (c) the defendant’s estimated costs, on the indemnity basis, to mediation were $25,000 including GST; (d) the plaintiff’s estimated costs, on the indemnity basis, to mediation were $37,400 including GST (but which included an uplift of $6,250 plus GST); (e) the defendant’s further costs, on the indemnity basis, to the completion of a 1-day hearing are estimated to be $25,000 to $30,000 including GST; and (f) if the matter proceeds to a final hearing, the total costs of the proceedings will substantially, if not entirely, exhaust the estate.
**********
Dictionary.com (online at 2 February 2026) ‘proportionality’ https://www.dictionary.com/browse/proportionality accessed 2 February 2026.
John S Tuckey (ed), Mark Twain’s “Which Was the Dream?” and Other Symbolic Writings of the Later Years (1966, University of California Press) at 46.
Dictionary.com (online at 2 February 2026) ‘proportionality’ https://www.dictionary.com/browse/proportionality accessed 2 February 2026.
Macquarie Dictionary (online at 2 February 2026) ‘proper’.
Thus in mathematics proportionality may convey having the same or a constant ratio: Macquarie Dictionary (online at 2 February 2025) ‘proportionality’.
Niccolo Machiavelli ‘The Prince’ Chapter XVII see J Keeler Hoyt, Hoyt's new cyclopedia of practical quotations drawn from the speech and literature of all nations, ancient and modern, classic and popular, in English and foreign text: With the names, dates, and nationality of quoted authors, and copious indexes ed Kate L Roberts (Funk & Wagnalls Company New York and London, rev and enl ed, 1922) 463 https://babel.hathitrust.org/cgi/pt?id=coo.31924054703610&seq=5 accessed 22 January 2026.
Tarbes v Taleb [2023] NSWSC 565 (Tarbes) at [195].
Tarbes at [212] citing Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 (Goodman v Windeyer) at 502 per Gibbs J (as his Honour then was) (Stephen and Mason JJ agreeing).
Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10G-11A; Ikonomou v Panagopoulos [2017] NSWSC 1805 at [93] per Parker J; Tarbes at [196].
Sgro v Thompson [2017] NSWCA 326 (Sgro v Thompson) at [86] per White JA (McColl JA at [1] and Payne JA at [2] agreeing).
I have located one case in which a interlocutory capping order has been made in a family provision case at a pre-trial directions hearing but it was not the subject of any published reasons that time and the fact of the order, without reasons for the making of it, is only referred to briefly in the final judgment: Towill v Towill [2024] NSWSC 1384 (Towill) at [75] and [110]. Examination of the Court file reveals that the order was made pursuant to UCPR r 42.4 on 11 October 2024 at the final pre-trial directions less than 2 weeks prior to the final hearing. The order does not appear to have been the subject of particular contest. Otherwise, research of counsel and myself have been unable to locate any family provision case setting out reasons for the making of an interlocutory cost capping order.
DS [13(d)] Defendant’s affidavit 12 September 2025 [11].
Emails to Associate to Meek J 17 November 2025 – plaintiff’s actual costs $44,416 incl GST (Ella Stratford); defendant’s actual costs $18,000 incl (Sara Willson).
Affidavits of Gregory Miller sworn 17 November 2025 and 21 November 2025. Transcript (7 November 2025) (T) 3.5.
T 1.20.
T 1.20-.25.
T 8.9-.11, T 10.28-.30.
T 2.14-.17.
DS [1] citing Alexiou v Alexiou [2025] NSWSC 1340 (Alexiou) at [145], Kelly v Jowett (2009) 76 NSWLR 405; [2009] NSWCA 278 at [56] and Hartnett v Bell (2023) 112 NSWLR 463; [2023] NSWCA 244 at [123]. The extent of the Court's inherent jurisdiction in particular to address questions of costs is very broad: Hartnett v Bell. In Alexiou, Lindsay J referencing the inherent jurisdiction and Hartnett v Bell, found that the Court’s inherent jurisdiction extends to orders regulating costs as between lawyer and client, at least in family provision proceedings where the interests of justice mandate a limit on the costs of lawyers recoverable from their clients so as to maintain the integrity and utility of the proceedings: at [145]. In Alexiou v Alexiou [2025] NSWCA 164 (Alexiou – CA), the Court of Appeal dismissed the appeal from Lindsay J, without discussing the inherent jurisdiction.
T 22.26-.38.
DS [2] citing Sherborne Estate (No 2): Vanvalen v Neaves [2005] NSWSC 1003; 65 NSWLR 268 (Sherborne) at [22]-[31], Baychek v Baychek [2010] NSWSC 987 (Baychek) at [16]-[17].
DS [2] citing Mendonca v Tonna [2024] NSWCA 288 (Mendonca) at [6], Smith v Blanch [2025] NSWCA 124 (Blanch) at [29].
DS [3] citing Alexiou v Alexiou [2024] NSWSC 1340 (Alexiou) per Lindsay J at [21].
DS [4] citing Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 at [2], [34].
DS [5].
DS [6] citing Oshlack v Richmond River Council (1998) 193 CLR 72 at [65].
DS [6] citing Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263 (2010) 176 LGERA 424 (Delta -CA) per Basten JA.
DS [7] citing CPA ss 56, 58.
DS [8] citing CPA s 60, Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources [2009] NSWLEC 165; (2009) 170 LGERA 22 (Caroona) at [18].
DS [8] citing Baychek at [21]-[26] and also Dalton v Paull (No.2) [2007] NSWSC 803 (Dalton) at [12]-[13], Gill v Smith [2007] NSWSC 832 (Gill) at [31]-[34], Askew v Askew [2015] NSWSC 192 (Askew) at [127]-[132], Wilson v Porada (No 2) [2017] NSWSC 1362 (Wilson) at [43], Detheridge v Detheridge [2019] NSWSC 183 at [178], Poche v Poche [2020] NSWSC 835 (Poche) at [323]-[337], Wheatley v Lakshmanan (No 2) [2022] NSWSC 851 (Wheatley) at [111].
DS [11] citing Skalkos v T & S Recoveries Pty Ltd [2004] NSWCA 281; (2004) 65 NSWLR 151 (Skalkos) at [8] and Sherborne.
DS [11].
DS [14]-[16].
DS [12] citing Re Beddoe; Downes v Cottan [1893] 1 Ch D 547.
PS [1.1].
PS [2.2(b)].
PS [1.2].
PS [2.1(a)] citing Baychek, Nudd v Mannix [2009] NSWCA 327 (Nudd) and the first instance decision of Pain J in Blue Mountains Conservation Society Inc v Delta Electricity [2009] NSWLEC 150 (Delta (first instance)) [41], [69].
PS [2.1(b)].
PS [2.1(c)] citing Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 (Grant) at [312].
PS [2.2(a)] citing Salmon v Osmond [2015] NSWCA 42; (2015) 14 ASTLR 442 (Salmon) at [172], Toppi v Toppi (No 4) [2025] NSWSC 1136 at [53]-[56] and Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521 at 522 (Singer No.1) per Gaudron J.
PS [2.3].
PS [2.4] citing Askew at [126].
PS [2.5(a)] citing Sherborne at [26].
PS [2.5(b)] citing Wilson at [41]-[48].
PS [2.5(b)] citing Kay v Archbold [2008] NSWSC 254 per White J (Kay) at [23].
PS [2.5(b)] citing Kay at [24].
PS [2.8] citing Sherborne at [27], Pethers v Pethers (No 2) [2025] NSWSC 561 (Pethers) at [37], [42], Mendonca at [8].
PS [2.5(a)-(d)].
PS [2.8].
PS [2.6],[2.7].
PS [2.9] citing Wilson at [48].
PS [3.1]-[3.2].
See e.g. Bare v Small (2013) 47 VR 255; [2013] VSCA 204 Hansen and Tate JJA at [1]; Michos v Eastbrooke Medical Centre Pty Ltd [2019] VSCA 282 Emerton JA and Kennedy AJA at [9].
See e.g. Blanch per Adamson JA at [1].
See e.g. Smith v NRMA Insurance Ltd (2016) 77 MVR 480; [2016] NSWCA 250 per Gleeson JA at [2]; Mehcur v Mehcur [2021] NSWSC 1252 per Ward CJ in Eq at [10].
Delta – CA per Beazley JA at [87].
Blanch at [1].
Wilson at [58]-[59].
Baychek at [25].
See e.g. Rosalind Dixon, "A New Australian Constitutionalism? Constitutional Purposes, Proportionality and Process Theory" [2024] SydLawRw 23; (2024) 46(4) Sydney Law Review 455
e.g. Lownds v Home Office (Practice Note) [2002] 1 WLR 2450 per Lord Wolfe CJ; Sherborne at [30].
See e.g. Caroona per Preston CJ at [17]-[18]; Delta - CA at [191].
See Caroona at [17]-[18]; Delta - CA at [191].
See e.g. Caroona at [31].
See e.g. See O62A r 2 under the now repealed Federal Court Rules (Former FCR).
See O62A under the Former FCR as recorded by Beazley JA at [63] and Basten JA in Delta - CA (see below) at [182]. Now see Federal Court Rules 2011 (FCR) r 40.51 (accessible at https://www.legislation.gov.au/F2011L01551/latest/text).
CPA s 98(1)(a)-(c).
Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.20(1).
Supreme Court Rules 1970 (NSW) (SCR) see Pt 52A r 35A SCR (Amendment No 337) 1999 [accessible at https://classic.austlii.edu.au/au/legis/nsw/num\_reg/scrn3371999200030339.pdf\]. Now repealed, (accessible at https://legislation.nsw.gov.au/view/html/inforce/2005-04-29/sl-1970-0001#sec.52A.35A).
Explanatory Note Ibid at [4].
Sherborne at [23].
Delta – CA per Beazley JA at [168], Basten JA and Macfarlan JA not directly addressing it. Nicholls v Michael Wilson & Partners Ltd (No 2) [2013] NSWCA 141 (Nicholls) per Sackville AJA at [21] admitting of the possibility that s 98(4)(c) CPA could be used for the purpose (Meagher JA at [1] and Barrett JA at [2] agreeing).
Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; (2010) 176 LGERA 424.
Ibid per Basten JA at [184].
Ibid per Basten JA at [190].
Ibid per Basten JA at [181].
Ibid per Basten JA at [185] citing Sherborne per Palmer J at [26] and [30].
Delta – CA per Basten JA at [185], [190].
Ibid per Beazley JA at [138].
Ibid per Basten JA at [203].
Caroona at [65].
GE Dal Pont, The Law of Costs (5th ed, 2021, LexisNexis) (Dal Pont) at 205-206 [7.47] referencing Caroona at [21]-[25], [56]-[59].
See principally Delta - CA per Basten JA at [186] (Macfarlan JA at [222] agreeing). But also see Beazley JA at [138].
CPA s 56(2) read with s 56(1).
Delta – CA per Beazley JA at [135] citing Halpin & Ors v Lumley General Insurance Ltd [2009] NSWCA 372 Basten JA at [20]-[29].
Ibid per Basten JA at [198].
Ibid.
See e.g. Alexiou per Lindsay J at [15] see also generally [12]-[32], [69]-[71], [116]-[147].
Horne v Horne [2001] NSWSC 50 (Horne) at [41]; Dalton per Macready AsJ at [10]; Dal Pont at 203 [7.43]. See relatedly for example Robinson v Glennon (No 2) [2025] NSWSC 1120 (Robinson) per Brereton J at [21].
Dal Pont at 203 [7.43].
Citing Hudson v Australian Broadcasting Corporation (2016) 311 FLR 134; [2016] FCCA 917 (Hudson) per Judge Manousaridis at [11].
See e.g. Caroona at [10].
Sherborne at [26]; see also Bell v Hartnett Lawyers (No. 2) [2021] NSWSC 1270 at [106]; Allsop Investments Pty Ltd v Jerkovic & Ors [2021] NSWSC 1399 (Allsop) at [108].
Nicholls at [22], [25] per Sackville AJA.
Roberts v Rodier [2006] NSWSC 1084 per Campbell JA (Roberts) at [39]-[41]; Nicholls at [23] per Sackville AJA.
Caroona at [11], see also Sherborne at [41] in the context of Palmer J's discussion regarding CPA s 98(4).
Caroona at [12], Delta – CA per Basten JA at [189].
UCPR r 42.4(3).
Dal Pont at 204 [7.45].
Citing inter alia Hanisch v Strive Pty Ltd (1997) 74 FCR 384 at 387 per Drummond J.
Citing Hudson at [61].
Citing Hudson at [69].
Delta - CA per Basten JA at [178].
Ibid per Basten JA at [204].
Ibid per Beazley JA at [137].
Ibid per Basten JA at [178], also at [215].
See e.g. Blanch at [39], see also [1], [48]. As to acknowledgement of statutory exceptions see Allsop at [110].
UCPR r 42.4(2).
Sherborne at [42].
UCPR r 42.4(4).
Sherborne at [25].
Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) (TFM Act).
Liosatos v Liosatos [2025] NSWSC 44 (Liosatos) at [13].
Liosatos at [12]-[20]; see also Barns per Gleeson CJ at [2], [34].
[2009] QSC 107 at [33].
Alexiou at [145].
Sherborne at [8], [11]. Alexiou per Lindsay J at [15] see also generally [12]-[32], [69]-[71], [116]-[147].
PN EQ 7 [5].
PN EQ 7 [15.3] (plaintiff); PN EQ 7 [18.13] (administrator).
PN EQ 7 [17].
PN EQ 7 [40].
Alexiou at [21].
Pethers at [42].
Pethers at [45]-[48].
Pethers at [55].
Singer No.1 at ALR 522 per Gaudron J.
Jvancich v Kennedy (No 2) [2004] NSWCA 397 (Jvancich) at [11].
Salmon at [174] per Beazley P (McColl and Gleeson JJA agreeing at [180] and [181] respectively) citing Chapple v Wilcox [2014] NSWCA 392 at [138]-[139].
Haertsch v Whiteway (No 2) [2020] NSWCA 287 (Haertsch) per Macfarlan, Meagher and Leeming JJA.
Haertsch at [9].
Sherborne at [56]-[58].
Haertsch at [11] citing Sherborne at 279 [64] and Moussa v Moussa - Costs [2006] NSWSC 509 at [8].
See e.g. In re White (Deceased) (1932) 49 WN (NSW) 178 (Re White) at 178-179 per Harvey CJ in Eq; Fiorentini v O’Neill [1998] NSWCA 79 (Fiorentini) per Mason P, Handley JA and Fitzgerald AJA at page 9.
Baychek at [25].
Baychek at [26].
SCR Pt 52A r 35A.
(January 2000) Supreme Court Rules 1970 (NSW) (SCR) see Pt 52A r 35A now repealed, (accessible at https://legislation.nsw.gov.au/view/html/inforce/2005-04-29/sl-1970-0001#sec.52A.35A).
See Idoport Pty Ltd v National Australia Bank Ltd (2000) 49 NSWLR 51; [2000] NSWSC 338 (Idoport) at [14]-[36] per Einstein J.
See e.g. Horne v Horne [2001] NSWSC 50 (Horne) per Hodgson CJ in Eq at [35], [40].
Moore v Moore [2004] NSWSC 587 (Moore) at [43]; Szlazko v Travini [2004] NSWSC 610 at [11]-[12] (remarks endorsed by Brereton J in Application of Ferdinando Scali [2010] NSWSC 1254 at [10]).
Carroll v Cowburn [2003] NSWSC 248 per Young CJ in Eq at [31]-[36] (no cap actually ordered); Foster v Lisle [2003] NSWSC 1243 at [76] (costs capped at $22,900 being the amount of the legacy).
See e.g. Deves v Porter [2003] NSWSC 878 per Campbell J at [5] (a de facto relationship claim with costs limited to no more than the $20,800 entitlement); Van Zonneveld v Seaton [2005] NSWSC 175; (2005) DFC 95-311 per Campbell J at [13]-[18].
See e.g. Dunne v Dunne [2013] NSWSC 1911; (2013) 12 ASTLR 299 at [40]; McCarthy v Tye [2015] NSWSC 1947 at [63].
Skalkos per Ipp JA at [8] (Sheller JA at [20] and Grove J at [21] agreeing).
Jvancich per Giles JA at [4]-[6] (Handley JA at [1] and McColl JA at [22] agreeing) citing Moore at [43].
Dal Pont at 208-209 [7.51].
CPA s 57(1)(d).
CPA s 60.
Supreme Court Practice Note SC Eq 1 (Now repealed) (accessible at https://supremecourt.nsw.gov.au/documents/Practice-and-Procedure/Practice-Notes/equity-practice-notes/replaced/EQ\_01\_-\_2005\_08\_17\_PN\_SC\_EQ\_01\_-\_Case\_Management.pdf).
See e.g. Alexiou at [126]-[128].
In Sherborne the proceedings had been heard and determined and submissions as to costs made before the CPA and UCPR commenced on 15 August 2005. Nonetheless as the proceedings had not been concluded, transitional provisions applied with the terms of the CPA and UCPR to the proceedings: at [21].
In Sherborne the proceedings had been heard and determined and submissions as to costs made before the CPA and UCPR commenced on 15 August 2005. Nonetheless as the proceedings had not been concluded, transitional provisions applied with the terms of the CPA and UCPR to the proceedings: at [21].
Sherborne at [26]-[29].
New South Wales Legislative Council, Parliamentary Debates (LC Hansard), 26 June 2008 at 9423-9424 per the Honourable John Hatzistergos.
LC Hansard, 26 June 2008 at 9424 per the Honourable John Hatzistergos.
LC Hansard, 24 September 2008 at 9881-9882 per the Honourable John Ajaka.
LC Hansard, 26 June 2008 at 9423-9424 per the Honourable John Hatzistergos. See also Askew at [127] per Rein J.
SA s 99(2).
Nudd at [23]-[27] per Handley AJA (McColl JA at [1] and Macfarlan JA at [2] agreeing).
Dal Pont at 209 [7.51].
Parker v Parker [2006] NSWSC 473 (Parker) per Brereton J at [35].
Tobin v Ezekiel - Ezekiel Estate [2008] NSWSC 1108 per Pamer J (Tobin – Palmer J) at [1], [31]-[37].
Dalton at [12]-[13], read with [1]; Gill at [33] (citing CPA s 60 and UCPR r 42.5 [sic]); Dinnen v Terrill [2007] NSWSC 1405 Macready AsJ at [35].
See e.g. Roberts at [42]-[44]; Brown & Anor v Grosfeld [2011] NSWSC 1429 (Brown) at [24]-[27].
See e.g. Estate Pascale [2016] NSWSC 443 per Lindsay J at [101(5)-(7)].
Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 571 per Brereton J at [20] (Tobin – Costs); Squire v Squire [2019] NSWCA 90 (Squire) per Meagher JA at [42]-[43] (Macfarlan JA at [1] and Simpson AJA at [47] agreeing). The Estate of Tatiana Anorov [2024] NSWSC 1301 at [6]-[24] (a capping order was made in relation to costs in respect of the proper construction of a settlement agreement of various actions including family provision claims).
Wilson at [47].
See e.g. Dinnen at [38].
Robinson per Brereton J at [21].
Baychek at [21]-[23].
Wilson at [33]-[36].
Wilson at [37].
Wilson at [38].
Dinnen at [37].
Kay at [14], [21]-[22]. An application by defendant for an interlocutory order to cap the plaintiff’s costs at a maximum of $35,000 was filed approximately 11 months after the proceedings were commenced, about 3 months prior to the listed final hearing. White J declined to hear the application as a preliminary issue in advance of embarking upon the hearing of the main case. His Honour noted that by the time the matter came on for hearing in order capping costs even if it could be properly made would not have a prophylactic effect it being too late and that was preferable to get on with the hearing.
Dal Pont at 205 [7.47] citing Wilson at [48].
Wilson at [48], Askew at [131]-[132]; Tobin – Palmer J at [31].
Mitchell v Mitchell [2010] NSWSC 179 at [81]-[84].
Wheatley at [85].
Sherborne at [26], Wilson at [41], Pethers at [37].
Wilson at [43].
Kay at [23].
Kay at [23]-[24] (plaintiff’s costs had been materially increased by the issue of numerous subpoenas and attendances upon the return of subpoenas).
Mendonca at [8].
Askew at [132].
Brown at [16]-[23].
Wheatley at [110].
Squire per Meagher JA at [42]-[43] (Macfarlan JA at [1] and Simpson AJA at [47] agreeing).
Compare Baychek at [25], [34]-[35].
Robinson per Brereton J at [21].
Grant per Ward CJ in Eq [316] also [312], [313]; Poche per Henry J at [353(1),(3)].
Wheatley per Ward CJ in Eq at [2].
Detheridge per Slattery J at [172]-[180].
Grant at [312]-[313], [317(6)(f)].
Gill at [16]-[17] [31]-[34], [85].
PN EQ 7 (plaintiff's costs to mediation [15.3], administrator's costs to mediation [18.13]; updating costs to final hearing [35]-[36]).
See e.g. Therese Catanzariti ‘New Family Provision Regime Including New Family Provision Practice’ (Paper, 1 April 2013) (accessible at https://13wentworth.com.au/wp-content/uploads/2019/01/newfpregime.pdf).
Moore at [43]-[44].
Jvancich at [4]-[6].
Jvancich at [6].
Tobin – Costs at [16].
Wilson at [43].
Nudd at [27].
LPUL s182(2)(a).
LPUL s182(2)(b).
[2025] HCA 28.
Ibid at [198].
Ibid at [189].
See e.g. Oxley v Oxley [2018] NSWSC 91(Oxley) per Hallen J at [57]-[61].
Moore at [45].
Anderson v Hill [2017] NSWSC 1149 per Hallen J at [35]-[41].
Oxley per Hallen J at [57]-[90].
PN EQ 7 (plaintiff's costs to mediation [15.3], updating costs to final hearing [35]-[36]).
Hirachand v Hirachand [2025] AC 599; [2024] UKSC 43 (Hirachand) per Lord Richards JSC, Lord Lloyd-Jones, Lord Leggatt, Lord Burrows, Lord Stephens, Lord Richards JJSC agreeing) at [100].
Relevantly under the Inheritance (Provision for Family and Dependants) Act 1975 (UK).
See Courts and Legal Services Act 1990 (UK) s 58A(6). A “success fee” is a percentage of the “base costs”, payable if the claim succeeds through a judgment or settlement. “Success” for these purposes will be defined by the terms of the conditional fee agreement in question. “Base costs” are a party’s own legal fees which would be payable if their solicitors and/or counsel were not engaged under a conditional fee agreement: See Hirachand at [42]-[43]. Under the agreement the uplift was 72% but it was reduced by Cohen J (sitting in the Family Division of the High Court) to a sum approximating a 25% uplift: Hirachand at [13]-[14], [71].
Courts and Legal Services Act 1990 (UK) s 58A(6).
Bowers v Matthews [2024] NSWSC 1353 at [51]-[52].
Fiorentini at page 9; Carey v Robson; Nicholls v Robson (No 2) [2009] NSWSC 1199 (Carey) per Palmer J at [31].
See e.g. Macquarie Dictionary (online at 2 February 2025) ‘Pyrrhic victory’.
Poche at [264]-[267].
Poche at [309].
Alcan Australia Ltd v Geraghty (Supreme Court (NSW), Young J, 8 October 1993, BC9302153, unrep) at 2-3; Idoport at [10]-[15].
Grigor v Stock [2025] NSWSC 232 (Grigor) at [4]-[6]; Jurak v Latham [2023] NSWSC 1318 at [51].
CPA ss 56(1), 57 (esp. 57(1)(d)), 58, 60.
Grigor at [6].
Tobin – Palmer J at [34]-[37]; Tobin – Costs at [14]; Harris v Harris [2018] NSWCA 334 (Harris) per Basten JA at [4] (Macfarlan JA at [22] agreeing).
Carey at [32]-[33].
SC EQ 07 (commencing 1 March 2013) generally especially at [8].
CPA s 56(3).
CPA s 56(4).
Carey at [34], also [28],[33].
Grant at [171].
Rogic v Samaan (No 2) [2018] NSWSC 1573 at [42]-[44]. See more particularly in relation to cost management orders and cost capping orders the UK ‘Senior Courts Costs Office Guide 2021’ Section 3.
Terms of Reference (d) See https://parlinfo.aph.gov.au/parlInfo/download/committees/reportjnt/024551/toc\_pdf/Improvementsinfamilylawproceedings.pdf;fileType=application/pdf.
Ibid see [2.70]-[2.81].
Ibid at [2.82].
Ibid at [2.89].
Ibid.
Ibid at [2.88].
Sherborne at [31].
CPA s 98(3), read especially with s 98(1)(b).
CPA s56-60 and in particular ss 56(1) and (2), 57(1)(d) and (2), 58 and 60.
Allsop per Slattery J at [108].
CPA s 86.
Wheatley at [83]-[84].
Which included the 2005 SC EQ 1 Practice Note which expressly foreshadowed capping in family provision proceedings.
Alexiou at [21].
Sherborne at [26].
Harris at [18], Grant at [298] read with [171]-[172], Mendonca at [5]-[6], Blanch at [29].
UCPR r 42.4(4).
See e.g. Civil Procedure Act 2010 (Vic) (Vic CPA) ss 7(1), 65C.
Delta (first instance) at [15], [57].
Delta (first instance) at [53] citing Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 per Bennett J at [6] in turn citing Flew v Mirvac Parking Pty Ltd [2006] FMCA 1818 (Flew) per Barnes FM at [15].
Delta – CA at [209].
Ibid at [216].
Flew at [56].
Application of O and P [2005] NSWSC 1297 per Campbell J at [57]-[60].
Bogan v Estate of Peter John Smedley (Dec'd) [2025] HCA 7; (2025) 422 ALR 94 (Bogan) per Gageler CJ, Gordon, Gleeson, Jagot and Beech-Jones JJ at [63]-[65].
Baker v The Queen [2004] HCA 45; (2004) 210 ALR 1 per Gleeson CJ at [13].
Macquarie Dictionary (online at 2 February 2025) ‘special’.
R v Kelly [2000] QB 198 at 208.
Bogan at [67]-[78].
CPA s 56(2).
Alexiou – CA at [27], (Payne JA at [1] and Stern JA at [2] agreeing).
T 7.46-.49.
4 February 2026 [8]: “deciding” amended to “decide” [13]: full stop inserted after “deceased” [13]: “in light of any progression of the proceedings and potential family provision order that might be made. That will need to be regularised, and I will do so below.” amended to “Representation of the estate for progression of the proceedings and any potential family provision order that might be made, will need to be regularised, and I will do so below.” [58]: “not necessary” amended to “unnecessary” [63](6): “:” amended to “.” [67](7): “costs order” amended to “an order” [68]: “different ways both” amended to “various ways” [90]: “by dint of” removed [91]: “Nonetheless” amended to “However” [108]: “regime” inserted [110]: “authorising” inserted [114]: “which provides the rationale for” removed [146](1): “,” after “UCPR r42.4” amended to “and” [149]: “assessed” amended to “approximated” [150]: “claims” amended to “claim” [158]: “days” amended to “day hearing” [160]: “to” after “solicitors” removed [160]: “to” inserted after “LPUL” [161]: “a consideration in” removed [172]: “(” and “)” inserted [184]: “defendants” amended to “defendants’” [233]: “,” after “UCPR r42.4” amended to “and”
Footnote 19 : discussion of Hartnett v Bell in Alexiou inserted [83]: “and to what extent” and “prospective” inserted [111]: discussion of inherent jurisdiction in Alexiou per Lindsay J inserted Footnote 116: case reference amended to include pinpoint “at [33]” Footnote 117: amended to “Alexiou at [145]”
Footnote 4 : “2025” amended to “2026” [38]: quote amended to insert “[who]” after “defendant” [39]: “MFI-1” amended to “marked for identification (MFI) 1” Footnote 19: citation amended [43]: “more specifically $25,250” inserted in bracket before “being” [46]: counsel’s fees amended from “$5,500” to “$550” [50]: “approximal” removed [62](6): “in” inserted after “matter” [67](9): “has been made” inserted after “attempt” [102]: quote amended to include two sets of ellipsis [108]: addition of “(Chapter 3)” after “Succession Act” [124] double quotation marks around “borderline” amended to single quotation marks Footnote 36: pinpoint amended from “[25]” to “[26]” [130]: “in” inserted after “persisted” Footnote 146: amended to include “citing Moore at [43]” [138]: “of” inserted after “making” [146](9): “it” removed [155]: ““faint suggestion”” amended to ““faint” submission”; “matter” amended to “manner” [161]: “ought” amended to “or” Footnote 210: pinpoint amended from “[57]” to “[57]-[61]” Footnote 217: “CFA” amended to “conditional fee agreement” twice [173]: “of a” inserted after “Note” [180]: “is” inserted after “work done” [189]: “the” inserted after “providing that” [190]: “case management” amended to “case manage and” [205] “of” removed [213]: “may be” inserted before “only tentatively” [222]: “under” amended to “on a” [239]: “not” after “side has” removed [242]: “he” amended to “he or she”
Lord
Craig [2026] NSWSC 17
(2004) 210 ALR 1
(2013) 47 VR 255
(2025) 422 ALR 94
(2009) 170 LGERA 22
(2010) 176 LGERA 424
(1980) 144 CLR 490
(1989) 17 NSWLR 1
(2000) 49 NSWLR 51
(1993) 114 ALR 521
(2004) 65 NSWLR 151
(2016) 77 MVR 480
(2009) 76 NSWLR 405
(2003) 214 CLR 169
(1998) 193 CLR 72
(2016) 311 FLR 134
(1997) 74 FCR 384
Determinations of what is proportionate or proper lies not merely in the realm of substantive outcomes in family provision proceedings but extends to the question of costs of such proceedings. Proportionality is particularly vital in circumstances where the value of property being contended over is modest or meagre. This is one of those cases. Proportionality of costs may be considered and dealt with in a number of ways, one of which includes relevantly in this case consideration of ‘costs capping’.
Cost capping in family provision proceedings at the conclusion of the litigation is occasional but not common. The determination is contemporaneous or retrospective in light of the final determined outcome of the proceedings. However, family provision cost capping applications at an early interlocutory stage (prospective capping) have been very rare. This appears to be the first case [11] in which a contested application for a cost capping order has been both made and heard prior to completion of all interlocutory steps and in advance of the allocation of a hearing.
The substantive case involves a family provision application under the Succession Act in relation to the estate of the late Barry Lord (deceased) who died on 28 May 2024, aged 77, leaving a Will dated 3 November 2021 (Will). In circumstances more fully recounted below, the deceased’s estate was very modest in value approximating (net) $135,674 [12] and entirely distributed. The contest is between 2 of the deceased’s 5 children, being the plaintiff who seeks provision having received nothing from the deceased estate and the defendant whom the deceased appointed as executrix under his Will leaving the entirety of his estate to her.
In circumstances where the parties have incurred actual costs in the sum of $62,416 incl GST [13] (approximately 46% of the net estate), the defendant seeks a costs-capping order for both parties. Having regard to actual costs, and estimated costs to a hearing the total amount of costs would effectively consume the entirety of the net estate.
No formal order has been made for the defendant to represent the estate of the deceased. Representation of the estate for progression of the proceedings and any potential family provision order that might be made, will need to be regularised, and I will do so below.
Capping should not be made where there is insufficient evidence “to enable the court to make a logical, fair and reasonable estimate of what would be an appropriate gross sum to incorporate in a costs order”. No satisfactory attempt has been made to set out the basis on which the $20,000 cap has been reached and accordingly the application ought to fail [53] .
Mid-decade, 2005 was a watershed year with legislative enactments and judicial pronouncements impacting upon cost proportionate litigation and cost capping.
The civil litigation reforms in 2005 emphasised proceedings being disposed of at a cost affordable to the respective parties [148] and proportionate to the importance and complexity of the subject-matter in dispute [149] . The concomitant introduction of a Practice Note which expressly foreshadowed capping in family provision proceedings tied it to concerns regarding proportionality of costs [150] . Since then, Practice Notes bearing upon family provision proceedings have consistently foreshadowed the prospect of cost capping orders albeit that the estate threshold size has been raised to $1 million [151] .
In October 2005, the seminal decision of Palmer J in Sherborne [152] (the first of a number of cases considering the capping provisions of r 42.4 UCPR) was a landmark moment which had a profound effect on approaches of judges generally to cost capping in litigation and in particular in relation to family provision claims.
In Sherborne [153] , Palmer J, in typically insightful and eloquent language, brought to powerful crescendo cost capping considerations highlighting the Court’s role in curbing the tendency of parties to engage in disproportionate expenditure on legal costs and the desire of parties to zealously vindicate through family provision proceedings family grievances or personal animosity [154] .
Further legislative reforms led to the enactment and commencement of Chapter 3 Succession Act in March 2009 including specific provisions designed to address increasing and disproportionate costs. This included mandatory mediation and broad regulation making power dealing with advertising and costs highlighted in the Second Reading speeches for the Succession Amendment (Family Provision) Bill 2008 (NSW) which resulted in Chapter 3 Succession Act [155] . The instances of 2 cases cited by the Attorney-General of disproportionate costs involved costs approaching 25% of the deceased estate [156] .
In addition to comments as to disproportionality of costs per se, the speeches included concerns regarding the making of unmeritorious claims, accessing money from the deceased's estate (eroding its value [157] ) to fund legal costs without any restriction, and numerous instances of cost blowouts [158] .
In relation to capping of costs it is significant that the regulation making power under the Succession Act expressly contains a provision with respect to the costs of family provision proceedings including the fixing of maximum costs for legal services that may be paid out of the estate or notional estate of the deceased [159] . However, there are no such regulations that have been made, and the Succession Regulation 2025 does not address that matter.
In the above context, in 2009 the Court of Appeal had no difficulty recognising sufficiency of power to cap costs and further finding no cause to interfere with the exercise of the discretion of an Associate Justice capping costs at no more than the quantum of the legacy ordered in view of his Honour’s extensive experience in family provision proceedings and knowledge of the general level of costs in such cases [160] .
Despite the “pause for thought” provided by Jvancich*,* Dal Pont observes that these reforms “reinvigorated trial judges in utilising their power to fix costs as a vehicle to secure proportionality in family provision disputes” [161] .
The pragmatic rule of thumb (award-costs parity) whilst useful, was recognised by some judges as one which had to be applied with caution and having regard to the circumstances of the individual case [162] . In some cases, capping orders were foreshadowed [163] or made [164] but in other cases judges considered it more appropriate to leave questions of proportionality of costs to the costs assessment process [165] .
The next 15 years between 2010-2025 have seen an evolution of the capping jurisdiction in family provision claims principally by reference to the creation of a dedicated Succession List, revised Practice Notes and occasional judgments highlighting various aspects of costs capping in family provision claims. Large cost concerns have continued. In some instances, capping orders have been foreshadowed [166] and in other instances made [167] .
The capping jurisdiction extends to the costs not merely of plaintiffs but also of administrators or other defendants. However, there are few instances of administrators or defendants’ costs being capped [168] . Capping of defendant’s costs have occurred in family provision cases at least where in substance the proceedings have been conducted as adversarial proceedings between family members with a nominal defendant having an ‘economic interest’ in the outcome [169] , or where the proceedings are defended by the administrator for his or her own benefit rather than for the benefit of the estate [170] .
Capping is informed by the nature and purposes of the jurisdiction. Other features of family provision proceedings which have been said to bear upon questions of capping and fixing costs include [171] : (a) such proceedings are concerned with the proper distribution of a fixed pool of assets; (b) expected outcomes may be quite small, such that it is reasonable to expect that the costs will be proportionate to the amount claimed size of the estate and the nature of the issues in the case; and (c) such claims often involve considerable personal animosity, and parties are often more concerned to vindicate their position than to resolve the dispute as efficiently and as cost effectively as possible.
Certain aspects of family provision costs capping and guides which have emerged from the last two decades include guides or indications that:
the jurisdiction has been sourced to “long standing practices” of the Equity Division (both by reference to case law and Practice Notes) [172] , UCPR r 42.4 [173] and CPA s 60 [174] ;
the effect of Practice Notes and caselaw is sufficient of itself to put parties and practitioners on notice of the possibility of cost capping, in the absence of judges making any specific mention of the possibility at pre-trial directions hearings [175] ;
delay in an application for costs capping being made or heard prior to the final hearing may count against such an order being made where any prophylactic effect is absent or minimal [176] ;
capping considerations are not limited [177] and have been said to include:
Legal practitioners (and indeed, any person with a relevant interest in the proceedings) must not, by their conduct, cause a party to the proceedings to be put in breach of that duty [232] .
Clearly, as I have noted, there will be an irreducible core of work that will inevitably be required to progress or defend a family provision claim. The intent of the Practice Note is that “focus and economy” [233] is expected of parties and practitioners so that work associated with the simple and measured content of the pro forma plaintiff’s affidavit and the prescribed form of administrator’s affidavit, brief cost estimates and sensibly moderated informal exchange of vital information broadly speaking reflects that “core” and can be prepared at simple cost.
Objective and balanced consideration must be given by litigants and their legal representatives at an early stage prior to commencing proposed claims as to the merits of the proposed application particularly in light of the size of the estate and the likely impact of costs on the distributable estate. This is especially so in small estates [234] or very small estates.
Self-evidently, in cases of very small estates such as this one where the value of the estate is no more than say $100,000 to $150,000, parties and practitioners cannot sensibly incur costs to mediation regularly in the order of $35,000 to $50,000 on each side. Forensic moderation is required.
Sensible conduct of family provision litigation recognises that there should be differences between what is done in preparing and defending cases depending upon the size of the estate and the likely impact of costs. There should be a cost differential such that in simple cases in small estates the essential work done is suitably pared and refined so that the costs to carry a matter to mediation on each side should be much closer to $20,000 to $30,000 for each side.
Practitioners giving advice and parties making decisions regarding the conduct of proceedings, must make forensic adjustments as to what work is to be undertaken and at what cost to proportionately balance advancement or defence of claims in light of the size of the estate and the likely impact of costs.
The Committee proposed amendments to the Family Law Act 1975 (Cth) to assist court to effectively case manage and encourage the resolution of matters and to control excessive costs. The proposed amendments included a provision that would “set the maximum costs and disbursements that a legal practitioner may charge a party to proceedings at $50,000 or 10 per cent of the combined value of the parties’ identified property and superannuation, whichever is the higher” [241] .
The above considerations bearing upon cost capping will likely form part of informed discussion and feedback for those tasked with any future reform of family provision law in NSW.
Obviously, the making of costs capping orders in family provision proceedings at or consequent upon the final determination of provision orders where the outcome of the claim in the size of the legacy is known is significant to assessment of whether orders are made in those cases where the issue of capping orders is raised or considered.
By contrast, at early interlocutory stages of family provision proceedings if capping is to be considered, the Court will not know the size of a legacy (if any) awarded to the plaintiff.
In Delta (first instance), the defendant accepted for the purposes of the capping application that the plaintiff had an arguable case in the proceedings [254] . Pain J referenced some authority [255] in which one of the considerations in deciding whether to make a costs capping order at an interlocutory stage under the rules in those jurisdictions was whether the applicant’s claims are arguable and not frivolous or vexatious. On appeal in Delta – CA, Basten J referenced the fact that her Honour had accepted that the proceedings involved a reasonably arguable case [256] and in addressing consideration of her Honour’s assessment of the balancing exercise referenced her Honour’s conclusion that the case was reasonably arguable and that the applicant had acted reasonably in pursuing it as a consideration that there was a sound basis for making the protective costs (capping) order in the amount proposed [257] . Certainly, there is no suggestion in Delta – CA that whether a plaintiff has an arguable case or not is an impermissible or irrelevant consideration. Nonetheless, depending upon the time at which any application is made, the extent of the arguability or strength of the plaintiff’s case may not be able to be meaningfully assessed [258] or may be only tentatively assessed. In that regard, it may be simply part of the overall evaluative assessment that the court makes at the interlocutory stage.
Further, there is some force to the view that the “overall justice of the case” is unlikely to emerge or in any event be indistinct at an interlocutory stage of the proceedings.
However, in acknowledging the above matters, I do not regard the unknown ultimate outcome of the plaintiff’s claim or limitations that may apply to early consideration of the overall justice of the case as being decisive factors against making a prospective capping order. They are simply matters to be weighed in the balance in making the evaluative determination of whether to make a capping order at an interlocutory stage.
Nonetheless, if a costs capping order were made at early stages of interlocutory proceedings in reliance upon those (s 86, 98 CPA and s 99 SA) provisions, one might well think that in circumstances where parties had acted upon the fact that such an order had been made and having regard to the overall justice of the case that it would be important for the Court to consider the final outcome of the family provision claim and any relevant or material circumstances that had transpired since the making of the order in considering whether any ultimate variation of such order ought to be made.
I accept that it may be difficult in interlocutory stages to appreciate fully “the overall justice of the case”. However, that consideration may be ameliorated by making any interlocutory cost capping order, “subject to further order”.
Despite the submission that a capping order “may impact on either party’s ability to continue in the proceedings”, there is simply no evidence that either party and more particularly the plaintiff would be stymied by a capping order to such an extent that he or she would be unable to continue the proceedings.
Contrary to the submission of Ms Wilcox that there is insufficient evidence “to enable the Court to make a logical, fair and reasonable estimate of what would be an appropriate gross sum to incorporate in a costs order”, I consider that there is adequate evidence. I have actual costs details to date and estimates as to costs set out above. I have detail as to the basic nature of the plaintiff’s claim and the financial circumstances of the parties.
By evaluative assessment I consider that a cap slightly in excess of the limit suggested by Mr Price is appropriate, namely that the maximum sum that any party may recover from any other party, or out of the deceased’s estate in these proceedings is specified as $22,500 (inclusive of GST).
Ms Wilcox submitted that a capping order should not be made but rather the parties should be directed to return to mediation/informal settlement conference. I do not see the two as being mutually exclusive. Indeed, I consider that in light of the capping order there is good reason for the parties to return to an informal settlement conference or Court-annexed mediation (which can be had without the costs of a mediator). If it be the case that consequent upon any such settlement conference the parties are able to resolve the matter and seek as final orders some adjustment to the capping order, then that can be considered in light of the then prevailing circumstances.
Lest there be doubt about it, I am mindful of the fact that the plaintiff’s costs estimate include an uplift component in his arrangements with his solicitors. However, even if that component is removed, the plaintiff’s costs are still materially larger than the defendant’s actual costs to date.