Madigan v Love

Texts Cited: Nil

Category: Costs

Parties: Dan Morgan Madigan (Plaintiff)
Colin William Love (First Defendant)
Donna Marie Woods (Second Defendant)

Representation: Counsel:
J Brown (Plaintiff)
N Bilinsky (Second Defendant)
Solicitors:
PB Ritz Lawyers (Plaintiff)
Glass Goodwin (Second Defendant)

File Number(s): 2024/42509

Publication restriction: Nil

JUDGMENT

1. I delivered judgment in these proceedings (2024/42509) and related proceedings (2024/42950) on 30 May 2025: Madigan v Love; Madigan v Love [2025] NSWSC 558 (the principal judgment, ‘J’). In each case, I ordered that the summons be dismissed with costs. These reasons assume familiarity with my principal judgment.

2. On 13 June 2025, the plaintiff in proceedings 2024/42509, Dan Madigan, made an application under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) that the order in relation to his claim be varied to say that the summons is dismissed with no order as to costs. The defendant, Donna Woods, opposes that relief.

3. Dan accepts that his claim for a family provision order was unsuccessful and that, in the ordinary course, he would be ordered to pay costs by reason of UCPR r 42.1. However, he submits that his situation in life is such that the Court should make no order as to his costs of the proceedings. He points out that I accepted his evidence as to his lifelong drug dependency and as to his parlous financial position. At J[157] I accepted his submission that his life is in need of some kind of intervention. I described his circumstances as dire: see J[148].

4. Dan’s solicitor submitted, in an affidavit accompanying the notice of motion, that the costs order made on 30 May ‘may have a very detrimental impact on him and his capacity to turn his life around, noting the costs order may deprive him of funds which could have otherwise been used to obtain treatment and potentially turn his life around’. He submitted that he is a vulnerable person (which he undoubtedly is), that he was an eligible person whose claim was brought within time, and that his claim was not frivolous or vexatious.

5. Dan particularly relies on what was said by Gaudron J in Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521 at [6]:

“Family provision cases stand apart from cases in which costs follow the event. Leaving aside cases under the Act which, in s 33, makes special provision in that regard, costs in family provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant's financial position. And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate” (footnotes omitted)

6. These remarks have been taken into account in the context of s 99 of the Succession Act 2006 (NSW): see Harkness v Harkness (No 2) [2012] NSWSC 35 at [18] (Hallen AsJ). However, I do not think Gaudron J was saying that the court should generally decline to make a costs order against an unsuccessful applicant where to do so would be detrimental to his or her financial position. Apart from anything else, that approach would be contrary to s 98 of the Civil Procedure Act 2005 (NSW) and UCPR r 42.1. Even so, I accept that it may sometimes be appropriate to make no order for costs against an unsuccessful applicant, especially where to do so ‘would adversely affect the financial position which had been taken into account in dismissing the application’: Harkness v Harkness (No 2) at [18(j)].

7. This however is not a case of that kind. Dan is generally impecunious. His claim was not rejected because I found him to have sufficient funds to meet the needs described in his evidence. His claim was dismissed in spite of the fact that I accepted that he had significant financial needs that he could not meet. The costs order against him does not falsify any finding about his financial circumstances made in my judgment: cf McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484 at [59] (Brereton J).

8. As matters stand and as Donna submits, there is no utility in seeking to enforce the costs order against Dan. It would be pointless. However, in the course of the next 12 years (as to which, see s 17 of the Limitation Act 1969 (NSW)). there is reason to suppose that Dan’s financial position will change. As I found at J[53] and J[130], Dan is likely to inherit his elderly mother’s estate. Given the outcome of the proceedings, I do not consider that Donna should be shut out from recovering her considerable costs of defending these proceedings if and when Dan does come to inherit from his mother.

9. Dan points out that this is a case in which the defendant made no offers to settle the proceedings at any point. He accepts that if he had rejected a reasonable offer of compromise, then that rejection would be taken into account in making a costs order against him: Theocharous v Theocarous (No 2) [2025] NSWSC 660 at [242]-[243] and [245].

10. That is true, but it is hardly the point. Donna was quite entitled to make no offers in circumstances where Dan’s claim was unmeritorious. I note that Donna’s solicitors did write to Dan’s solicitors on 1 March 2024, over 12 months before the hearing, to point out that Dan’s claim was likely to fail and that he should withdraw it. That letter was not an offer of compromise and so does not engage the principles discussed in Calderbank v Calderbank [1976] Fam 93. Nevertheless, it leaves me in no doubt that Dan – whose legal costs up to the end of the trial were estimated to be $135,650 – pressed on with full knowledge of the likely financial consequences of doing so.

11. In my view, the application should be dismissed. I will not however make any order as to the costs of this application.

Orders

12. The notice of motion dated 13 June 2025 is dismissed with no order as to costs.

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