NATALE -v- BROWN AS EXECUTOR OF ESTATE OF EDWARD NATALE [2025] WASC 492 (20 November 2025)

These orders are primarily based on a Calderbank offer sent to Ms Natale on 3 February 2025.

1. Also pursuant to the programming orders, Ms Natale filed an affidavit sworn 8 December 2025 (Natale Costs Affidavit). I interpret the orders sought by Ms Natale as being to claim the legal and accounting costs incurred by her in relation to the application, as well as costs in relation to a related action, CIV 1413 of 2021.
2. In the Natale Costs Affidavit, Ms Natale refers to an offer of settlement made by her at a mediation conference. Ms Brown objects to the admissibility of this evidence based on the mediation privilege and filed submissions in that regard on 9 December 2025 (Defendants' Privilege Submissions).
3. In paragraphs 15 to 17 of the Natale Costs Affidavit, Ms Natale calls into question some of the factual findings made in the Substantive Decision. As these matters have no bearing on the issue of costs, I do not need to consider them. The only way factual findings in the Substantive Decision can now be challenged is on appeal.
4. As set out in the Substantive Decision ([5]), the third defendant is Justin Natale, who is the biological son of the Deceased and Ms Brown. On 13 February 2025, Justin filed a notice informing the court that he did not intend to take part in the proceedings and would accept any order made by the court other than as to costs. No costs orders are sought against the third defendant, so there is no requirement to give him an opportunity to be heard on the issue of costs.
5. There are four issues arising for determination:

(a) Is the evidence in the Natale Costs Affidavit relating to the mediation admissible?

(b) What costs can Ms Natale claim?

(c) What principles ordinarily govern costs in Family Provision Act 1972 (WA) (FPA) applications?

(d) What costs order should be made in this case?

2. Is the evidence in the Natale Costs Affidavit relating to the mediation admissible?

1. Ms Natale deposes that:[2]
   1. At the first mediation conference for this matter, I was represented by Dawson Davies Solicitors and made an offer to the Defendants to settle this matter for $100,000.

4.1 My Offer was rejected by the Defendants and the counter offer made to me for settlement, was $20,000 being paid to me in installments.

1. The offers made at the first mediation conference are evidenced in the letter sent to me by Dawson Davies Solicitors on 23 October 2020.

Attached and marked "A" is a true copy of the letter sent to me by Dawson Davies on 23 October 2020.

1. It is my understanding that the Court has its own records, for the offers made at the Mediations Conferences and this is why the parties are required to attend them.
2. On 28 January 2021 the Defendants made a Calderbank offer to my previous solicitor to settle this matter for $20,000 being made in monthly payments of $1,428.58.

Attached and marked "B" is a true copy of the Calderbank offer I received from the Defendants on 28 January 2021.

1. The two attachments confirm what Ms Natale says.
2. What Ms Natale says in paragraph 6 is not correct. The Supreme Court does not maintain a record of offers made at mediation conferences. More specifically, RSC O 4A r 8(5)(a) provides that the mediator must not (unless the parties agree) report to the court on the conference. There is a limited exception where the mediator is of the view that it is appropriate to report to the court a failure by a party to cooperate in the conference: RSC O 4A r 8(5)(b).
3. In the Defendants' Privilege Submissions, Ms Brown submits that the exception to the mediation privilege in Supreme Court Act 1971 (WA) (SCA) s 71(3)(c) does not apply.
4. The mediation privilege and its exceptions are contained in SCA s 71, which provides:

71. Privilege

(1) Subject to subsection (3), evidence of -

(a) anything said or done; or

(b) any communication, whether oral or in writing; or

(c) any admission made,

in the course of or for the purposes of an attempt to settle a proceeding by mediation under direction is to be taken to be in confidence and is not admissible in any proceedings before any court, tribunal or body.

(a) any document prepared in the course of or for the purposes of an attempt to settle a proceeding by mediation under direction; or

is to be taken to be subject to a duty of confidence and is not admissible in any proceedings before any court, tribunal or body.

(3) Subsections (1) and (2) do not affect the admissibility of any evidence or document in proceedings if -

(a) the parties to the mediation consent to the admission of the evidence or document in the proceedings; or

(b) there is a dispute in the proceedings as to whether or not the parties to the mediation entered into a binding agreement settling all or any of their differences and the evidence or document is relevant to that issue; or

(c) the proceedings relate to a costs application and, under the rules of court, the evidence or document is admissible for the purposes of determining any question of costs; or

(d) the proceedings relate to any act or omission in connection with which a disclosure has been made under section 72(2)(c).

(4) A mediator cannot be compelled to give evidence of anything referred to in subsection (1) or (2) or to produce a document or a copy of a document referred to in subsection (2) except -

(a) in proceedings referred to in subsection (3)(d); or

(b) in proceedings relating to a costs application where there is a dispute as to a fact stated or a conclusion reached in a mediator's report prepared under the rules of court on the failure of a party to cooperate in the mediation and the evidence or document is relevant to that issue.

costs application means an application for the costs of the mediation or of the proceedings to which mediation relates.

1. The mediation in question took place on 23 October 2020. It was listed pursuant to orders made on 13 February 2020. It was a 'mediation under direction' for the purposes of SCA s 71.[3] By SCA s 71(1), unless an exception in SCA s 71(3) applies, the evidence set out in the Natale Costs Affidavit pars 4 and 5 is not admissible on the issue of costs.
2. The relevant exception in SCA s 71(3) is said to be paragraph (c). The present application is a 'costs application' as defined in SCA s 71(5). However, that is not sufficient. The evidence or document must also be admissible 'under the rules of court ... for the purposes of determining any question of costs'. At the same time SCA s 71 was introduced, SCA s 167(1)(q) was added, which gave the court the power to make rules providing for 'the admissibility of evidence in relation to a mediation for the purpose of determining the costs of the mediation or the costs of the proceedings between the parties to the mediation'. The only relevant rule is RSC O 4A r 8(6) (where there has been a report to the court by the mediator). There is no more general rule allowing what was said at a mediation conference to be taken into account on a costs application. Accordingly, the evidence in Natale Costs Affidavit paragraphs 4 and 5, and annexure A, is inadmissible.[4]
3. The evidence at paragraph 7 and annexure B is admissible. It is a standard Calderbank offer, that is, a letter marked 'without prejudice save as to costs'.[5]

1. Ms Natale was represented by Dawson Davies solicitors between when the originating summons was filed on 20 November 2019 and 6 September 2021 when she filed a notice to the effect that she intended to act in person. For the period she was a litigant in person, Ms Natale is only entitled to claim court fees and other disbursements incurred.[6]
2. From registry records, I find that Ms Natale has paid the following disbursements:

1. Ms Natale seeks to claim five further sets of costs.
2. The first is the costs she paid to Dawson Davies solicitors in relation to this application. She annexes documentation to the effect that the costs she paid were $17,067.10. Ms Natale is able to make a claim for these costs.
3. The second amounts is from a firm of lawyers, Johnstone Crouse Lawyers. She annexes documentation to the effect that she incurred costs with this firm of $9,958. However, at no time did Johnstone Crouse filed a notice of acting in this application.
4. The third amount is from another firm of lawyers, Laird Lawyers. Ms Natale annexes documentation to the effect that she incurred costs with this firm of $12,148.80. As with Johnstone Crouse Lawyers, at no time did Laird Lawyers file a notice of acting in this application.
5. Costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation.[7] As a general rule, a party can only claim from another as 'costs' an amount which the party is under a legal liability to pay to their legal practitioner on the record.[8] Difficult issues can arise as to whether the party is in fact under a legal liability to pay for the costs incurred by the legal practitioner on the record.[9] However, for present purposes, I will assume that Ms Natale is liable to pay the amounts to Johnstone Crouse Lawyers and Laird Lawyers which she identifies in the Natale Costs Affidavit. The problem is that neither law firm was ever her solicitor on the record in this application. This is not necessarily fatal to her claim. There is old authority that a party can still claim its legal costs where because of an oversight the legal practitioner was not on the record[10] or where there was a change in representation and a failure to file a notice to that effect.[11] In the former case, Farwell J observed the rule of practice to the effect that charges of a solicitor who was not on the record when the charges were incurred can never be allowed on taxation 'may be set aside where natural justice requires it'.[12] However, in both these cases, there was a 'slip' on the part of the solicitor.
6. I accept that the power to order costs in Supreme Court Act 1935 (WA) s 37(1) confers a board or wide discretion on the court in relation to costs.[13] I also accept that the 'conferral of a wide, general power as to costs was intended by Parliament to permit an approach by which the judiciary develops and applies the rules on costs in a principled and coherent manner'.[14] However, there is no principled or coherent basis on which the power to order costs can, or should, be extended generally to legal practitioners who provide advice to someone who is a litigant in person in connection with litigation, but who are not the legal practitioner on the record. Rather, there are sound policy reasons to, as a general rule, limit the legal costs that can be recovered to those incurred by the legal practitioner on the record. These include the obligations on the legal practitioner set out in RSC O 8 as well as those set out in Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 rules 17 to 28, dealing with advocacy and litigation. Where the legal practitioner (or their firm) is on the record, it is clear that the legal practitioner is bound by these obligations. The corollary is an entitlement by the client to have these costs taxed.
7. This conclusion is reinforced by RSC O 66 r 32(1) which identifies the bills of costs which may be taxed:

Unless the Court in a particular case otherwise directs, bills of costs and fees which are payable to legal practitioners admitted and entitled to practise in the Court in respect of business transacted by them in the Court or its offices, and which have been directed by judgment or order to be taxed, shall be taxed, allowed and certified by the taxing officer who shall appoint a time for taxation on the application of the party claiming taxation.

Where the legal practitioner has provided advice or assistance to a litigant in person without being on the record, it is difficult to characterise that work as 'business transacted by them in the Court' (my emphasis). The business has been transacted by the litigant in person.

1. For these reasons, I conclude that Ms Natale is not entitled to claim the amounts she is liable to paid to Johnstone Crouse Lawyers and Laird Lawyers as part of her costs of the action.
2. The disbursements allowable on a taxation are set out in RSC O 66 r 19:
   1. Disbursements etc. allowable on taxation

Any of the following items, disbursements, expenses, payments, or charges are allowable on taxation -

(a) items of costs allowable under any relevant scale and such counsel fees as may be allowed;

(b) disbursements for fees of court;

(c) disbursements for fees of officers of the Court;

(d) witness expenses paid or to be paid under any relevant scale of allowances fixed in that regard;

(e) agency charges, if specially allowed by the Court or by the taxing officer;

(f) the reasonable expenses as fixed by the taxing officer of the typing, printing, and binding of appeal books;

(g) other necessary disbursements or payments made in the conduct of the litigation;

(h) any other necessary expense incurred in the conduct of the litigation, whether or not it has been paid before the taxation of that expense takes place.

1. To this is added Item 36 of the Legal Profession (Supreme and District Courts) (Contentious Business) Costs Determination 2024 (WA) (Costs Determination):

As between party and party, a party may be allowed disbursements incurred by that party except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exceptions, that party is fully reimbursed for its disbursements.

1. It could be argued that the costs incurred with Johnstone Crouse Lawyers and Laird Lawyers are 'necessary disbursements made in the conduct of the litigation'. For the avoidance of doubt, in my view, they should not be allowed as disbursements. As a matter of policy, a litigant in person should not be able to get around the position set out at [25] by claiming the costs of legal practitioners as disbursements. Moreover, claiming a legal cost as a disbursement removes the item from the detailed taxation regime set out in the balance of the Costs Determination.
2. The fourth amount is from 'Kahnsulting'. This appears to be for accounting services. Ms Natale annexes documentation to the effect that she incurred costs with this firm in the amount of $10,615.
3. In relation to the costs of Kahnsulting, there was no order for expert evidence in this case, so this amount cannot be claimed as a witness expense. Nor was there a specific report of Kahnsulting tendered in evidence. I accept for present purposes that this firm provided accounting advice to Ms Natale. However, I am not persuaded that it was a 'necessary expense' incurred in the conduct of the litigation. It appears to me more in the nature of general advice. She is not entitled to claim the costs she paid to Kahnsulting as a disbursement.
4. The fifth amount is from Rowick and Bucolo Lawyers. This is in relation to CIV 1413 of 2021. I refer to this action in the Substantive Decision at [105]. These costs cannot be claimed in the present application.

4. What principles ordinarily govern costs in FPA applications?

1. Pursuant to FPA s 14(6), the court may make such orders as to the costs of an application under the FPA 'as it deems just'. FPA s 14(6) confers a broad discretion that is to be exercised judicially.[15]
2. There are two costs issues. The first concerns the costs of the executor. In the ordinary course, it is appropriate that an executor's costs be reimbursed from the estate on an indemnity basis.[16] This position is set out in Rules of the Supreme Court 1971 (WA) O 66 r 9(2) which provides (so far as is relevant):

Where a person is or has been a party to any proceedings in the capacity of... personal representative... he shall, unless the Court otherwise orders, be entitled to the costs of those proceedings, in so far as they are not recovered from or paid by any other person, out of the fund held by the... personal representative...; and the Court may otherwise order only on the ground that the... personal representative... has acted unreasonably, or in the case of a... personal representative, has in substance acted for his own benefit rather than for the benefit of the fund.

1. As to the duties of the executor, these were described by EM Heenan J in Daniels in the following terms:[17]

Another difference of importance in this form of proceedings is that one defendant will always be either the executor or administrator of the estate of the deceased, whose duty it is to put all material facts relating to the size and administration of the estate before the court and, subject to that obligation, to seek to uphold the will or the laws of intestate distribution as they apply to the estate, but in a manner that avoids partisanship or close alliance with either the applicant or other beneficiaries. Subject to performing this duty in an objective way, the role of the executor or administrator in appearing before the court and dealing with such an application, whether contested or otherwise, is part of that person's duty to undertake due administration of the estate. Accordingly, the executor or administrator who performs this role is usually entitled to his or her costs of the proceedings, regardless of the outcome, and on an indemnity basis, as part of the costs and expenses of the administration of the estate: compare O 66 r 9(2).

1. The second concerns the costs of the beneficiaries and claimants who substantively contest the application. The general policy of this court is that the costs of proceedings under the FPA are to be borne by the beneficiaries or claimants who were unsuccessful in the proceedings rather than the estate.[18] That is, the usual practice that costs follow the event applies.
2. However, there are some unique features or characteristics of FPA claims which have an effect on the discretion to award costs. These are also succinctly described in the judgment of EM Heenan J in Daniels:[19]

Unlike claims arising from commercial disputes, contracts, torts or property disputes, the power of the court to make or withhold an award to an applicant under this legislation does not depend on the ascertainment and enforcement of any pre-existing legal or equitable rights but, rather, upon a consideration of whether or not, under the statutory formula, the deceased has failed to make adequate provision for the proper maintenance and welfare of an applicant within a particular class of eligible family members. If there has been a failure by testator to make adequate provision for a particular applicant, then the jurisdictional or objective test is satisfied and it becomes a discretionary judgment for the court to determine what, if any, provision or additional provision should be made for that applicant. Consequently, although there is now a very widespread and settled jurisprudence and system of principles which apply to guide courts in any particular case, there are difficulties in assessing the nature and extent of any entitlement to extra provision by an eligible applicant in many of these cases which, not infrequently, renders an assessment of the nature and prospects of success in any particular case more difficult than in many other types of litigation.

...

Consequently, these difficulties mean that a degree of restraint and tolerance is necessary in some cases if the court is asked to refuse or limit costs for an applicant, whether successful or unsuccessful, or to order that an applicant meet some or all of the costs of an unsuccessful application.

The large variability and potential influence of these matters render it important that the general discretion over costs by the court should be carefully determined and exercised rather than merely following, without regard to the particular circumstances, general principles or practices.

1. Consistent with the usual practice, it is incumbent on the unsuccessful party to satisfy the court that there are good reasons why it should not pay the costs of the successful party.[21]
2. One good reason for departing from the rule that costs follow the event is where prior to trial the successful party rejected a Calderbank offer on less favourable terms that the judgment following trial. The principles in relation to Calderbank offers apply generally to FPA claims.[22] Those principles are well established and may, for present purposes, be summarised in the following terms:[23]

(a) Calderbank offers are informal offers made on terms expressed to be without prejudice save as to costs;

(b) a Calderbank offer is a relevant factor in the exercise of the costs discretion;

(c) the court's approach takes into account the private and public benefits of encouraging reasonable settlements, including by possible costs consequences for the party rejecting the offer;

(d) the policy of encouraging reasonable settlement of an action is a factor in the exercise of discretion on costs;

(e) the party who makes a Calderbank offer takes the chance that, when the court exercises its discretion in all the circumstances, the offer will lead to costs consequences;

(f) the weight to be given to a Calderbank offer is a matter for the discretion of the court in all the circumstances of the case;

(g) a Calderbank offer may be used in support of an application for indemnity costs or for an order that the party who rejected the offer pay the costs of the party who made offer on a party‑party basis;

(h) a Calderbank offer will not justify an award of indemnity costs unless its rejection was unreasonable;

(i) the party who makes the Calderbank offer that is rejected bears the onus of satisfying the court that it should make an order of indemnity costs in its favour;

(j) there is a lower threshold for an award of party‑party costs than for indemnity costs, the power to order which is exceptional in character;

(k) a finding that a Calderbank offer was unreasonably rejected, judged at the time of the offer, is not a precondition to the power to award party‑party costs based on a Calderbank offer;

(l) however, the reasonableness, or otherwise, the conduct of a party in rejecting a Calderbank offer may be relevant to determining whether and to what extent the Calderbank offer sustains an exercise of the costs discretion adverse to the party who rejected the offer;

(m) the assessment of the unreasonableness of the rejection of a Calderbank offer is to be made at the time that the offer is considered, and without the benefit of hindsight, so that the issue of unreasonableness is not to be determined by adopting the judgment sum as a yard stick;

(n) the mere fact that the recipient of a Calderbank offer is ultimately worse off than he or she would have been had the offer been accepted, does not axiomatically mean that its rejection was unreasonable;

(o) more specifically, a Calderbank offer in an amount that exceeds the judgment sum does not give rise to a presumptive entitlement to indemnity costs;

(p) all the relevant facts and circumstances must be considered in determining whether the rejection of the offer was unreasonable; and

(q) whether it was reasonable not to accept the offer is to be determined objectively; and

(r) in assessing whether the rejection of the offer was unreasonable relevant facts include the stage of the proceeding at which the offer was received, the time allowed to the offeree to consider the offer, the extent of the compromise offered, the offeree's prospects of success, assessed as at the date of the offer, the clarity with which the terms of the offer were expressed and whether the offer foreshadowed an application for costs (including indemnity costs) in the event of the offeree's rejecting it.

5. What costs order should be made in this case?

1. I begin with the costs of Ms Brown in her capacity as executor. In case like the present one where the same person is a defendant in their capacity as executor and their capacity as beneficiary, and represented by the same firm, difficult practical questions can arise in trying to allocate the costs between each capacity. For example, the defence and opening submissions were the same document filed on behalf of Ms Brown in both her capacities.
2. In my view, to minimise costs on the taxation process, it is appropriate that I make orders identifying what costs Ms Brown can claim in her capacity as executor. These costs fall into two broad categories. The first is the costs of an incidental to the inquiry before the registrar as to the accounts of the Estate.[24] Ascertaining the assets, liabilities, income and expenditure of an estate, and accounting for them, is a central role of the executor. These costs include all costs of an incidental to:

(a) documents filed at the direction of the registrar, including submissions;

(b) the hearings before the registrar; and

(c) the submissions filed on 11 August 2025; and

(d) attendance the hearing before me on 22 October 2022.

These costs also include the reserved on 19 February 2025, 30 May 2025 and 24 July 2025. Consistent with the approach I have adopted, the documents filed by Ms Brown for the inquiry before the registrar were on their face filed in her capacity as first defendant (executor).

1. The second is the costs of and incidental to the other court documents which Ms Brown filed solely or primarily in her capacity as executor. These are:

(a) her affidavit filed 23 July 2020;

(b) her affidavit verifying the list of discoverable documents filed 25 October 2025; and

(c) the statement of assets and liabilities of the estate filed 12 November 2024.

1. As to the costs as between Ms Natale and Ms Brown in her capacity as beneficiary, as set out at [37], the starting point is that as Ms Natale was successful in the application, she would ordinarily be entitled to her costs. The question becomes whether Ms Brown can satisfy the court that there are good reasons why this should not occur.
2. The D'Angelo Affidavit establishes that:

(a) on 3 February 2025, an offer marked 'without prejudice save as to costs' was sent by the Main Legal Studio by email to Ms Natale;

(b) the offer was for payment of $150,000, with the proceedings to be dismissed with no order as to costs once a settlement deed was signed and payment made (Offer);

(c) the amount of $150,000 was said to represent 73% of the value of the Estate based on the statement of assets and liabilities filed on 12 November 2024 (which valued the Estate at $205,020.66);

(d) the offer was expressed to lapse at 5pm on 17 February 2025;

(e) Ms Natale responded by letter sent by email to the Main Legal Studio on 7 February 2025 (Counteroffer);

(f) in the Counteroffer, Ms Natale stated that, in her view, the value of the Estate was at least $700,000;

(g) the Counteroffer was for payment of $330,000 to her along with the transfer of 190 shares in ASS to her and Ms Brown resigning as appointor of the Natale Investment Trust in favour of Ms Natale; and

(h) the Counteroffer was also on the basis that the proceedings would be dismissed with no orders as to costs and the costs orders in CIV 1413 of 2021 be discharged.

1. The other relevant contextual fact is that the trial was scheduled to commence, and did commence, on 18 February 2025.
2. The Offer was on more favourable terms to Ms Natale than the $100,000 provided for in the November 2025 Orders. This includes costs (see [62]).
3. The Offer was expressed in clear terms.
4. The Offer foreshadowed that, if not accepted, Ms Brown would seek an order that all additional costs be paid on an indemnity basis.
5. The Offer was made at a time when all the trial evidence to be relied on by Ms Brown had been filed, in particular her affidavit filed 20 January 2025. Based on that evidence, Ms Brown contended that the value of the Estate was $205,020. Ms Natale contended it was $700,000. I valued it at $575,731.[25] It is significant to note that by this time Ms Natale had been given a strong indication by Master Sanderson that her arguments as to a breach of trust by Ms Brown had no foundation.[26] That is what I ultimately found. [27]
6. Ms Natale was given 14 days to consider the Offer. Given how long the application had been going on for, and the stage at which the Offer was made, that in my view was a reasonable amount of time. That view is strengthened by the fact that within four days, Ms Natale made the Counteroffer.
7. The extent of the compromise offered by Ms Brown was significant, 73% of what she said that the Estate was worth.
8. In the Natale Costs Affidavit, Ms Natale deposes that at the time the Offer was made the value of the Estate was unknown to her.[28] There is some merit in this point. It is appropriate to assess the reasonableness of the Offer on the basis that the Estate was worth somewhere between the $200k asserted by Ms Brown and the minimum of $700k asserted by Ms Natale.
9. There are four points to be made about Ms Natale's prospects of success as at the date of the Offer. The first follows on from the point in the previous paragraph. One risk that a person assessing the Offer would have to bring to account is the risk that the Estate would be valued closer to the amount asserted by Ms Brown.
10. The second is that Ms Natale had no prospect of success on her breach of trust argument, going to the value of the Estate. Based on the Master's comments, she should have known this.
11. The third is her claims for financial assistance for legal advice, assistance and representation, and the transfer of assets, to commence an action against Ms Brown were not claims that could ever be pursued under the FPA.[29] They had no prospect of success.
12. The fourth is that given Ms Natale's modest financial circumstances and health issues[30] she had a reasonable prospect of getting some provision. However, this was always going to be less than the provision made to Ms Brown, whose financial and moral claim was far stronger.[31] Her claim at trial for provision of $800,000 had no prospect of success.[32] She should have known this given that, in her view, the Estate was worth at least $700,000. She was never going to get all the Estate.
13. In my assessment, viewed objectively, in all the circumstances it was unreasonable for Ms Natale to have rejected the Offer.
14. Ms Brown does not seek an order for indemnity costs after rejection of the Offer, rather party and party costs. As mentioned, there is a lower threshold for party and party costs as the power to order indemnity costs is exceptional. In these circumstances, the order I deem just is that Ms Natale pay Ms Brown's costs subsequent to the rejection of the Offer. These costs should run from 8 February 2025, the day after the Counteroffer in effect rejected the Offer. The costs should exclude any costs incurred by Ms Brown in her capacity as executor.
15. With one exception, Ms Natale is entitled to her costs and disbursements up to an including 7 February 2025 on a party and party basis. The exception is the costs thrown away as a result of the adjournment of the mediation listed on 12 February 2021 which Registrar Griffin ordered Ms Natale to pay the Ms Brown in her capacity as second defendant.
16. As set out in Part 3, the maximum legal costs which Ms Natale can claim is $17,067.10, being the costs charged by Dawson Davies. The costs of having these costs taxed would, in my view, be a disproportionate to the likely benefit to Ms Brown. Rather, they should be fixed. By the time Ms Natale became a litigant in person (September 2021), there had been mediations on 24 July 2020 and 23 October 2020. Based on the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (WA) cl 8 and item 12, I fix the party and party costs at $11,250 (being the capped maximum for a plaintiff for work prior to, and attendance at, a mediation). To this I add the disbursements identified at [19] to 7 February 2025 ($8,772), giving a total of $20,022.
17. The costs orders should be netted off and brought to account in the distribution of the provision made to Ms Natale. That is, to the extent that the costs to which Ms Brown in her personal capacity is entitled exceed $20,022, this amount should be deducted from the $100,000 Ms Natale is entitled to pursuant to the November 2025 Orders and paid to Ms Brown personally. In the event that the costs to which Ms Brown is entitled to personally do not exceed $20,022, she is personally liable to pay the difference to Ms Natale.
18. This set of orders is, in my view, a just determination of the competing claims. I will give the parties liberty to apply as to the implementation of these orders.
19. The formal orders are:

1. The costs of the first defendant of and incidental to:

(a) the inquiry before the registrar as to the accounts of the estate of Edward Natale (Estate), including the costs reserved on 19 February 2025, 30 May 2025 and 24 July 2025;
>
> (b) her affidavits filed 23 July 2020 and 25 October 2025; and
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> (c) the statement of assets and liabilities of the estate filed 12 November 2024,

be taxed and paid out of the Estate, except in so far as they are of an unreasonable amount or have been unreasonably incurred, so that subject to those exceptions she is completely indemnified for her costs.

1. The second defendant pay the plaintiff's costs and disbursements of the application up to and including 7 February 2025 fixed in the amount of $20,022.
2. The plaintiff pay the second defendant's costs thrown away as a result of the adjournment of the mediation listed on 12 February 2021 to be taxed.
3. The plaintiff pay the second defendant's costs of the application from and including 8 February 2025 to be taxed, including the costs of and incidental to the making of these orders.
4. If the costs in orders 3 and 4 exceed the costs in order 2, the net excess be deducted from the provision made for the plaintiff in the orders made on 20 November 2025 and paid to the second defendant.
5. If the costs in orders 3 and 4 do not exceed the costs in order 2, the net deficit be paid by the second defendant to the plaintiff.
6. The parties have liberty to apply as to the application of these costs orders.

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

[1] Natale v Brown as Executor of the Estate of Edward Natale [2025] WASC 492 (Substantive Decision). I will continue to use the abbreviations set out in the Substantive Decision.

[2] Natale Costs Affidavit [4] - [7].

[3] Relying on the definition in SCA s 69.

[4] RJ Baker Nominees Pty Ltd v Parsons Management Group Pty Ltd [2010] WASCA 128 at [126] - [131] (Newnes JA, with whom Owen and Murphy JJA agreed); Western Areas Exploration Pty Ltd v Streeter [No 2] [2009] WASCA 15 at [26] - [40] (Buss JA with whom Wheeler and Pullin JJA agreed).

[5] Calderbank v Calderbank [1976] Fam 93.

[6] Cachia v Haines [1994] HCA 14; (1994) 179 CLR 403, 410 - 417 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ); Keremestvski v McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12(S) [24] (judgment of the court) (Keremestvski).

[7] Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333 [22] (Kiefel CJ, Bell, Keane and Gordon JJ); Cachia v Haines [1994] HCA 14; (1994) 179 CLR 403, 410 (Mason CJ, Brennan, Deane, Dawson & McHugh JJ).

[8] Marsh v Baxter [2015] WASCA 179 [15] (Newnes and Murphy JJA) (Marsh); Hancock Prospecting Pty Ltd v Hancock [No 3] [2016] WASC 423 [16] - [27] (Pritchard J) (Hancock); Grundmann v Georgeson [2000] QCA 394 [7] (reasons of the court); Mason v Grigg [1909] 2 KB 341, 343 (Farwell LJ) (Mason).

[9] See for example: Marsh [15] - [21].

[10] Mason 343 (Flecther Mouton LJ), 343 - 344 (Farwell LJ).

[11] Norris v Bailey (1893) 62 LJ (QB) 338, 339 (Lord Coleridge CJ), 339 (Collins J).

[13] Carbone v Lamers atf Ben and Lamers Family Trust [2025] WASCA 24 [28] (Quinlan CJ), [174] (Dalton AJA with whom Buss P agreed); Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96 at [48] (judgment of the court) (Strzelecki); Atwell v Roberts [2013] WASCA 37 (S) [7] (judgment of the court).

[16] Keremestvski [22]; Daniels v Hall [No 2] [2014] WASC 272 [62] (EM Heenan J) (Daniels).

[18] Dean v Collins [No 2] [2015] WASCA 151 [34] (Chaney J, with whom Martin CJ and Buss JA agreed) (Dean); Boscolo v Australian Unity Trustees Limited as administrator of the estate of Mario Boscolo [2023] WASC 391 (S) [15] (Solomon J) (Boscolo); Ryan v Zekas [2020] WASC 124 (S) [9], [47] (Hill J); Browne v Scarfe as Executor of Will of the late Dawn Lorraine Phillips [2015] WASC 422 [23] (Gething AM). See also: Consolidated Practice Directions, PD 9.2.2 [48].

[19] Daniels [14], [16]. Applied in: Boscolo [13] - [14]; Hodder v Australian Executor Trustees [No 2] [2021] WASC 415 [23] (Hill J) (Hodder).

[21] Nikolaou v Papasavas, Phillips & Co (No 2) [1989] HCA 11; (1989) 166 CLR 394 at 407 - 408 (Mason CJ, Wilson, Brennan, Dawson, Toohey and Gaudron JJ); Strzelecki [49].

[22] See for example: Dean [30] - [33]; Daniels [28]; [38], [61]; Hodder [24] - [32].

[23] QAV Pty Ltd v Netline Pty Ltd [2025] WASCA 186 [28] (reasons of the court); Shephard v Tuanie Paul Galea as executor and trustee of the estate of The Late Joseph Galea [2020] WASCA 152 [177] - [192] (judgment of the court); Pro Property Pty Ltd v Orchard Holdings Pty Ltd [2013] WASCA 283 [44] - [51] (Newnes JA, with whom Buss and Murphy JJA agreed); Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 [19] - [32] (Buss JA, with whom Wheeler JA agreed); McKay v Commissioner of Roads [No 7] [2011] WASC 223 (S) [92] - [130] (Beech J); Italiano v The Water Corporation [No 2] [2020] WASC 112 (S) [36] - [47] (Martin CJ).

[24] As to which, see: Substantive Decision [10] - [11].

[27] Substantive Decision [121] - [122].

[28] Natale Costs Affidavit [8] - [9].

[29] Substantive Decision [216] - [218].

[30] See Substantive Decision [206] - [214].

[31] Substantive Decision [239] - [245], [250].