Page v Page

The Evidence on Costs

1. On the argument about costs, Patricia relied upon an Offer of Compromise (a copy of which is Ex. C6) which had been served on 6 November 2015, and a Calderbank offer (a copy of which is Ex. C7), made on the same date, and in the same terms, each of which provided: 1. "(a) Judgment in favour of the Defendant; 2. (b) The Defendant to pay to the Plaintiff from the estate of the deceased the sum of $50,000 in respect of the Plaintiff's costs. 3. (c) The offer remains open for 28 days from the date hereof."
2. She also relied upon a letter dated 14 March 2016 (a copy of which is Ex. C8 on the costs argument) from her solicitors to the Plaintiff's solicitors relating to the value of the estate and notional estate.
3. There did not seem to be any dispute that the Offer of Compromise was one that had been made in accordance with Uniform Civil Procedure Rules ("UCPR"), rule 20.26(3)(a)(ii). That rule enables an offer to be made in accordance with the UCPR that proposes a judgment in favour of the defendant with a term of the offer that the defendant will pay to the plaintiff a specified sum in respect of the plaintiff's costs.
4. As stated, the Calderbank offer was in the same terms. The UCPR does not provide for, or refer to, any form of Calderbank offer, or any terms that such an offer should, or should not, include. It was accepted that the offer was a Calderbank offer, which is a written offer made without prejudice except as to costs that does not comply with the relevant rules of court relating to the making of offers of compromise.
5. I shall refer to the two offers made on behalf of Patricia as "the offer".
6. There is no evidence of a response by, or on behalf of, Warren, to the offer. (Although there was a reference by counsel to a counter-offer having been made, the correspondence containing such a counter-offer was not tendered on the application.)
7. On the costs argument, Warren relied upon the following documents: 1. A letter dated 27 November 2014 (a copy of which is Ex. CC) from the Warren's solicitors to him, being the conditional costs agreement entered into by Warren. 2. Letter dated 26 April 2016 (a copy of which is Ex. CD) from Warren's solicitors to Patricia's solicitors relating to the financial disclosure made relating to the estate and/or of Patricia.
8. Before proceeding further, I should mention that Warren commenced the proceedings by Summons filed on 23 February 2015. Warren relied upon only two affidavits served prior to 7 November 2015, being his affidavit of 20 February 2015 and his mother's affidavit of 20 May 2015. All of the other affidavits upon which he relied at the hearing, were made, and served, in, or after, December 2015.
9. On the other hand, seven of the affidavits relied upon by Patricia were served prior to November 2015. Only a few, which included updating affidavits and an affidavit of costs to the completion of the hearing, were served thereafter. It follows that much of Patricia's case was made known to Warren prior to the making of the offer.

The Submissions

1. I received from each of the legal representatives, an outline of submissions and a copy of the documents upon which she and he, respectively, relied in support of the costs orders sought. I have read the submissions carefully and they will remain with the papers.
2. Patricia submitted that she had obtained an order or judgment on Warren's claim that was no less favourable to her than the terms of the Offer of Compromise. This meant that she was entitled to an order against Warren for her costs in respect of the claim, such costs to be assessed on the ordinary basis, up to the time from which the defendant became entitled to costs under paragraph (b) of UCPR rule 42.15A(2), and an order against Warren for her costs in respect of the claim, assessed on an indemnity basis, from the beginning of the day following the day on which the offer was made.
3. Patricia also submitted that same result would follow from the non-acceptance of the Calderbank offer.
4. She submitted that each offer made contained a significant compromise as to an amount to be paid to Warren by way of his costs. Each offer did not invite capitulation because Warren would have been better off had the offer been accepted, even though the offer would not have resulted in any provision out of the estate or notional estate being made for Warren.
5. Patricia submitted that there were no discretionary reasons why the Court should "otherwise order".
6. At the outset, I note that, at all relevant times, Warren had experienced legal practitioners acting on his behalf. Since there is no evidence that they did not do so, I consider that it is more likely than not, they would have explained to him the costs consequences of obtaining a result less favourable than the offer made. No doubt, they would have also explained his risk as to costs if the proceedings were dismissed.
7. Warren submitted that, whilst Patricia had obtained an order or judgment on the claim that was "no less favourable to the Defendant in the terms of the offer", the presumption in favour of indemnity costs should be displaced because the offer did not involve any real compromise, since he would receive nothing; was not a genuine attempt to reach a negotiated settlement; was designed to trigger a costs application; and was, in essence, an offer to capitulate. Counsel described it as "almost a cynical offer": T6.22 - T6.24.
8. Counsel submitted that it was not unreasonable for Warren to reject the offer and that: "4. The Plaintiff filed his summons because he held a firm and genuine belief that he and his brother had reached an understanding whereby his brother would assist him because of his brother's involvement in sexual assaults against him, when under his brother's care and control after their father left the family home. 5. It was acknowledged by the defendant in cross-examination that she and the deceased "wanted to help Warren." The deceased and the defendant did not provide any form of assistance to the plaintiff during the deceased's lifetime or afterwards, therefore it was not unreasonable for the plaintiff to believe that the "help" would be in the form of financial assistance. It was only after the deceased's death that the plaintiff discovered that the Defendant as the legal personal representative of the deceased had no intention of honouring what the plaintiff regarded as a moral obligation of his brother which was informed by promises his brother had made to him, and to their mother."
9. Warren went on to submit that it was inconsistent with her evidence that Patricia, in acknowledging that both she and the deceased wanted to help Warren, would wish to worsen his already poor financial circumstances, following the deceased's death, and "drive him to bankruptcy", with the burden of a costs order.
10. Then, Warren relied upon his financial and material circumstances. He said that his assets were currently valued at $335,000 and his liabilities were estimated to be $150,000. He was reliant on pensions from the Department of Veterans Affairs, NSW Fire Brigade and Centrelink.
11. Reliance was placed on what I had written in Stojanovski v Stojovski [2016] NSWSC 976 at [265]: "As proceedings for a family provision order are essentially for maintenance, a court may properly decide to make no order for costs, even though it were otherwise justified, against an unsuccessful applicant, if it would adversely affect the financial position which had been taken into account in dismissing the application: Morse v Morse (No 2) [2003] TASSC 145; McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484; McCusker v Rutter [2010] NSWCA 318 at [34]."
12. (Of course, in the principal judgment, I had not taken into account Warren's financial position in dismissing his application. I was not required to deal with the question whether, at the time when the Court was considering the application, adequate provision for the proper maintenance, education or advancement in life of Warren had not been made by the Will of the deceased: s 59(1)(c) of the Act.)
13. Warren relied upon the fact that neither Patricia, nor any of her three children, had advanced her and his financial and material circumstances during the proceedings. He said that the Court "can infer that any order for provision or an order providing for payment of the Plaintiff's costs, would not have affected her overall financial position". He went on to submit that it followed that she did not need the compensation, in the form of a costs order, to be made against Warren.
14. (I do not accept this submission because what I wrote on this topic at [44] and [45] of the principal judgment related to their interests as competing financial claimants upon the bounty of the deceased.)
15. Warren did not make any submission that the letter accompanying the offer did not set out the basis for Patricia's contention that Warren should accept the compromise - for example, because his case was extremely weak or because if it failed, he had no reasonable prospects of achieving a result that was more favourable than that which was being offered.
16. Had such a submission been made, I would have referred to what Redlich J wrote in Aljade and Malaysian Kuwaiti Investment Co SDN BHD (MKIC) v Oversea-Chinese Banking Corp Ltd (OCBC) [2004] VSC 351 at [87], that: "Any attempt to prescribe the reasoning which must accompany [a Calderbank] offer should be resisted. Whether there is a need for the offeror to descend to specificity as to why the offer should be accepted must depend upon a consideration of all of the circumstances existing at the time of the offer. The extent to which the weakness of a party's position is exposed through the pleadings, affidavits and the various communications between the parties during the course of the litigation may bear upon the significance of the absence of specificity in the informal offer."
17. This passage was recently referred to, with approval, by the Court of Appeal in Victoria in Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141 at [235].

The Law

1. There was really no dispute on the principles that apply.
2. The Civil Procedure Act 2005 (NSW), s 98(1), provides that, subject to the rules of Court, and that, or any other, Act, costs are in the discretion of the Court. The discretion extends to the costs of all proceedings whatsoever, including the costs of the administration of any estate, or trust, and the Court has full power to determine by whom, to whom, and to what extent, costs are to be paid. It is a judicial discretion to be exercised on a principled basis.
3. Section 98(4) of the Civil Procedure Act provides: "In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to: (a) Costs up to, or from, a specified stage of the proceedings, or (b) A specified proportion of the assessed costs, or (c) A specified gross sum instead of assessed costs, or (d) Such proportion of the assessed costs as does not exceed a specified amount."
4. It is clear that the discretion to award costs is unconfined or "absolute and unfettered": Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 557 (Dawson J). However, it must be exercised judicially, that is, according to relevant considerations, and taking account of the contextual features and facts of the litigation.
5. The purpose of a costs order is to compensate, or indemnify, the person in whose favour it is made, not to punish the person against whom it is made: Ohn v Walton (1995) 36 NSWLR 77, at 79.
6. As was noted (albeit in another context), in Kazar (Liquidator) v Kargarian; In the Matter of Frontier Architects Pty Ltd (In Liq) [2011] FCAFC 136 at [9] (by Greenwood and Rares JJ): "The exercise of the discretion takes account of all of the contextual circumstances of the litigation and the conduct of the parties. One aspect of the award of costs is a recognition that a party has been put to expense which, taking account of the merits as ultimately found on the trial of the action, might otherwise have been avoided. That consideration does not infuse the award of costs with any sense of penalty or punishment but simply recognizes the compensatory nature of an award of costs, in context and according to principle. That is why an award of costs, although involving the exercise of a discretion, generally favours the successful party. As to the importance the community attaches to legal costs incurred of and incidental to the resolution of controversies before courts, see Clark v Commissioner of Taxation [2010] FCA 415 at [90]; Uniline Australia Ltd v S Briggs Pty Ltd (No. 2) [2009] FCA 920; (2009) 82 IPR 56 at [38]; and, Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 at [130] to [132]."
7. The UCPR rule 42.1 provides that 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. The "event" is generally taken to be the practical outcome of the proceedings.
8. The rule provides that the discretion to award costs, ordinarily, will require an order that the successful party's costs will be paid by the unsuccessful party. The power to "make any order as to costs" enables the Court, in an appropriate case, to depart from the general rule if it would be unjust to apply it. Thus, there is flexibility in determining questions of costs. Again, the rule extends to the costs in any proceedings.
9. UCPR rule 42.2 provides: "Unless the court orders otherwise or these rules otherwise provide, costs payable to a person under an order of the court or these rules are to be assessed on the ordinary basis."
10. UCPR rule 42.20(1) provides that if the Court makes an order for the dismissal of proceedings, then, unless the Court orders otherwise, the plaintiff must pay the defendant's costs of the proceedings to the extent to which they have been dismissed.
11. Ultimately, the Civil Procedure Act and the UCPR require the Court to make such costs order as it thinks just in the particular circumstances of the case: Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343 at [10].
12. In Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2001) 113 LGERA 439; [2001] NSWCA 137 at [72], Stein JA observed (Powell JA and Ipp AJA agreeing) that the Court is entitled to "look realistically at the litigation, the issues, the way it was conducted and the result, in order to assess who really succeeded and to what extent".
13. Black J, in In the matter of Employ (No 96) Pty Ltd (in liquidation) [2013] NSWSC 456 at [7], commented: "The principles underlying an award of costs include that costs are awarded to compensate the successful party for the expense of being put to the necessity of litigation; a wholly successful defendant should ordinarily receive its costs unless good reason is shown to the contrary; and the discretion to order costs must be exercised judicially and not against the successful party except for some reason connected with the proceedings: Milne v Attorney-General (Tasmania) [1956] HCA 48; (1956) 95 CLR 460 at 477; Oschlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 97-98 per McHugh J, at 129-123 per Kirby J; Ruddock v Vardalis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at 234. In Howard's Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5; (2010) 182 FCR 84, Gray J observed at [17] that: 'The overriding principle that costs are in the discretion of the court can also be expressed in terms of the negative proposition that no rule or principle should be applied mechanically in the determination of the question where costs should lie in any particular case. Attention must always be paid to the particular circumstances of the individual case. The aim is to do substantial justice in relation to costs, based on the outcomes of the various issues in the proceeding, as between the entities that are parties to that proceeding.'"
14. The Act does not contain any relevant provision to which s 98(4) of the Civil Procedure Act 2005 (NSW) would be subject. However, s 99 of the Act provides: "The Court may order that the costs of proceedings under this Chapter in relation to the estate or notional estate of a deceased person (including costs in connection with mediation) be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit."
15. No longer is there any difference between categories of eligible persons, as there was in s 33(3) of the Family Provision Act 1982 (NSW). The direction in s 33(2) of the former Act that "[t]he Court shall not order" the payment of costs out of the estate "in respect of an application in relation to a deceased person made by an eligible person who is such a person by reason only of" the fact that they fell within a certain category, is not repeated.
16. Rather, it is clear that the section in the Act also provides for an unfettered discretion as to how the costs of the proceedings may be borne. Importantly, the section relates to the payment of costs out of the estate or notional estate or both. It does not appear to relate to how costs may be borne otherwise.
17. I dealt with the general principles in Harkness v Harkness (No 2) [2012] NSWSC 35, at [17]-[18], in relation to costs, generally, in a claim for a family provision order, in circumstances where there has been no offer of compromise or Calderbank offer served. I shall not repeat all of what I wrote in that case. However, several parts of what I wrote, at [18], are relevant because of the oral submissions made on behalf of Warren: "(c) The view of some practitioners advising a potential applicant contemplating a claim for a family provision order, that there is little risk, and probably much to be gained, in making a claim, however tenuous, because even if the claim fails the applicant will, very likely, get his, or her, costs out of the estate and that he, or she, will not be significantly out of pocket, and the legal practitioner will receive his, or her, costs and disbursements in any event, has been thoroughly discredited. (d) Parties should not assume that this type of litigation can be pursued, safe in the belief that costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) [2010] VSCA 195. It is now much more common than it previously was for an unsuccessful applicant to be ordered to pay the defendant's costs of the proceedings (Lillis v Lillis [2010] NSWSC 359 at [23]) and be disallowed his, or her, own costs. … (f) An unsuccessful plaintiff will, usually, be ordered to pay costs where the claim was frivolous, vexatious, made with no reasonable prospects of success, or where she, or he, has been guilty of some improper conduct in the course of the proceedings: Re Sitch (No 2) [2005] VSC 383."
18. Basten JA in the Court of Appeal in Chapple v Wilcox [2014] NSWCA 392 at [27], expressed a similar view: "Whether or not an unsuccessful applicant should be allowed to litigate without expense to the estate will depend on a variety of circumstances. There is always a discretion in the Court when making an order pursuant to s 98 of the Civil Procedure Act 2005 (NSW). The discretion conferred on the Court by that provision is subject to the rules of Court (s 98(1)) and thus to r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), which provides that costs will follow the event unless it appears to the Court that some other order should be made. That rule is not disapplied in relation to family provision orders. Nor should applicants for such orders have any expectation that, as a general rule, the discretion will be applied so as to exempt them from liability for costs incurred by an estate in the case of an unsuccessful application. In some cases applicants will already be beneficiaries of the estate and may thus have some incentive to ensure that the costs of litigation are kept within tight bounds. However, that is not always the case. Where an applicant is entirely unsuccessful, an order that he or she should pay the costs of the estate may well be the appropriate order."
19. In relation to a claim for a family provision order in which an offer of compromise has been served, Kunc J set out the relevant principles in Bates v Cooke (No 2) [2014] NSWSC 1322 at [20] - [33]. (An appeal from his Honour's principal judgment was dismissed with costs: Bates v Cooke [2015] NSWCA 278).
20. At [33], his Honour wrote: "Taking into account the language of r 42.15A, a party seeking to persuade the Court to order otherwise must identify some feature or features of one or more of the proceedings, the claim, the offer (including, for example, when it was made) and the order or judgment obtained by the successful party which provide a rational basis for the Court to displace what the rule specifies is the costs order to which "the defendant is entitled"."
21. I respectfully agree.
22. In relation to a claim for a family provision order in which a Calderbank offer has been served, I dealt with the principles in Walsh v Walsh (No 2) [2013] NSWSC 1281, so far as they relate to reliance upon a Calderbank offer, at [39]-[56]. I shall not repeat all of what I wrote there.
23. Essentially, a Calderbank offer does not attract the same cost consequences as a formal offer of compromise made under the UCPR. Its presence does not yield any presumption of a costs order outside the normal rules. In an appropriate case, the existence of a Calderbank offer may influence, but not govern, the exercise of discretion supporting a different order as to costs. It enables the Court to consider whether it should exercise its discretion to make a costs order other than as provided by the UCPR rule 42.1 and rule 42.2. Nor does the making of a more favourable Calderbank offer appear to be determinative of what kind of (more favourable) costs order (or order other than the usual) should be made: In the matter of Cheal Industries Pty Ltd - Fitzpatrick v Cheal [2012] NSWSC 932 at [54] (Ward J, as her Honour then was).
24. Even where it is held that a Calderbank offer should have been accepted, and the offeree achieves a result as, or less, favourable than the offer at the trial, there is no automatic consequence. What must be considered is the reasonableness of the offeree's rejection or non-acceptance of that offer, a matter to be determined having regard to the circumstances at the time that the offer fell to be considered. The question is whether, in all the circumstances, the failure to accept the offer warrants departure from the ordinary rule as to costs.
25. In Evans v Braddock (No 2) [2015] NSWSC 518, I added, at [50]: "To these principles, I should add that service of a Calderbank offer serves a number of purposes, including to promote settlement and also to give the offeror cost protection in the event of an unreasonable refusal by the offeree. Furthermore, "to some extent any offer of compromise or Calderbank offer is necessarily a tactical weapon. At the heart of a Calderbank offer are two factors - settlement of the case and protection on costs if the offer is ultimately regarded as reasonable. Characterisation as a tactical weapon does not necessarily defeat the efficacy or the genuineness of the offer": Zealley v Liquorland (Australia) Pty Ltd & Anor (Costs Ruling) [2015] VSC 133, per J Forrest J, at [18] and [24]."
26. (Counsel submitted that the offer made was made only for the purpose of triggering a costs consequence. I do not accept that submission, but even if that were so, if the Court finds the offer to have been a reasonable one, that it has the effect of triggering a costs consequence does not mean that the Court should regard it as having been made for a non-genuine purpose.
27. What Santow JA (with whom Bryson JA and Stein AJA agreed) had written in Leichhardt Municipal Council v Green [2004] NSWCA 341 was that a Calderbank offer that has no real element of compromise in it, which is designed merely to trigger costs sanctions, will not be treated as a genuine offer of compromise. That is not the case here as the offer did not signify an acceptance by Warren of the ordinary cost consequences that would follow the dismissal of the proceedings. In my view, the offer to pay $50,000 on account of Warren's costs was a reasonably generous and sufficient offer for it not to be ignored in relation to an application for indemnity costs.)
28. I should note that in Stewart v Atco Controls Pty Ltd (in liq) (No 2) (2014) 252 CLR 331; [2014] HCA 31, the appellants, who were successful in the High Court, had made a Calderbank offer before the hearing of the appeal (to which they were, at that stage, the respondents) in the intermediate appellate court. The High Court, at [4], observed: "This Court has a general discretion as to costs. The non-acceptance of a Calderbank offer is a factor, in some cases a strong factor, to be taken into account on an application for indemnity costs. The respondent submits that its rejection of the offer was not unreasonable. If that be the test, it would appear to require at the least that the respondent point to a reason for not accepting the offer beyond the usual prospects of being successful in litigation."
29. It is clear that the High Court did not decide whether reasonableness is a factor which militates against the making of an indemnity costs order. The Court concluded that the costs of the Court of Appeal proceedings be paid on the indemnity basis.

Determination

1. There can be little doubt, in my view, that the terms of the offer made by Patricia were clear and precise; were a legitimate attempt to resolve the proceedings; and were capable of acceptance. Upon the basis that Warren's claim was dismissed, Patricia would forego any order for costs against Warren, and, in fact, would pay, $50,000 on account of his costs. That it did not provide for Warren, by way of a lump sum order under the Act, is beside the point and does not mean that it was not a genuine offer.
2. At the time of the making of the offer, no doubt, Patricia's costs were reasonably large, although the estimate of those costs, then, is not in evidence (although I have referred to the number of affidavits served by the date of the offer). Similarly, Warren's costs, at that time, are not known (although I have referred to the number of affidavits served by the date of the offer). However, this is not a case where the offer was made by Patricia at a time when most of the costs had already been incurred by Warren and at a time when the matter had been set down for a hearing.
3. I am satisfied that permitting 28 days from the making of the offer to accept it, in all the circumstances of this case, allowed Warren a reasonable amount of time to consider, and reflect upon, whether to accept the offer.
4. Finally, the offer foreshadowed an application for an indemnity costs order in the event of Warren rejecting it, or it having lapsed through effluxion of time. As a result of Warren rejecting the offer (or it expiring through effluxion of time), Patricia was required to further defend the proceedings at greater cost.
5. The offer was made about 10 months after the commencement of the proceedings, and, if accepted, would have avoided the need for the parties to incur substantial legal costs in relation to the hearing. It was also made in circumstances where Patricia was not only protecting her own position but was seeking to uphold the terms of a Will, for the benefit of herself and her children who were the chosen objects of the deceased's bounty.
6. It follows that Warren's submission regarding the offer not being a genuine attempt to negotiate a settlement should be rejected.
7. Ultimately, then, I must decide whether there are reasons to "otherwise order", with the result that Warren would not have to pay the costs of Patricia that have been sought, or if not those precise costs, her costs otherwise.
8. In reaching my decision on costs, I acknowledge that this was a novel and unusual claim by a sibling of the deceased in circumstances where there was an allegation of sexual abuse.
9. I have considered, again, the principal judgment. It is difficult to find any merit in Warren's submissions. In this regard, I note, particularly, that: 1. Overall, I did not find Warren to be a particularly impressive witness. I found him to be a witness who was extremely anxious to highlight that he had suffered at the hands of the deceased, and, although not put in these terms, to ensure that he should be compensated for the loss and damage that he believed had been caused by the deceased's conduct. 2. I found that his conduct, after the deceased's death, regarding service of the proposed Statement of Claim and subsequently not informing the Defendant that he did not intend to proceed (if that was his intention), lead me to conclude that he wished to put as much pressure as he could on her to avoid what was likely to be embarrassing litigation for her and her children, so that she would provide him with funds. 3. I found that the sending of certain text messages to the deceased was a deliberate demand for money, even if the amount demanded was not identified, and included a threat of the consequences if the demand was not met. 4. When investigated fully, Warren did not establish to the Court's satisfaction that he was an eligible person or that there were factors warranting the making of his application. The factual basis for reaching the ultimate conclusions was, essentially, the evidence relied upon by Warren.
10. I note, also, that there is no evidence of any offer made by Warren to resolve the proceedings, or even any written, or other, response to the offer made on behalf of Patricia. That might suggest, although I do not know, "the peremptory dismissal of an offer of compromise such that an inference could be drawn that no bona fide consideration had been given by the plaintiff to early settlement of the claim": Evans Shire Council v Richardson (No 2) [2006] NSWCA 61, at [21].
11. Some additional support for such a suggestion might be taken from the fact of the conditional costs agreement that Warren had entered into with his solicitors. That Warren had done so meant that if he were unsuccessful, he was not at risk as to his own costs. Patricia, as the legal representative of the deceased's estate, did not have that luxury and the estate is responsible for her costs.
12. It might be said, therefore, that for Warren to reject a clear offer by Patricia to forego the estate's costs and to pay $50,000 on account of his costs, and, instead, to pursue his case to its ultimate conclusion was unreasonable and would not justify an "otherwise" order.
13. In any event, at the time Patricia made the offer, Warren must have known of his own financial circumstances and that there was no certainty, if he was unsuccessful, that he would not be ordered to pay Patricia's costs. He was, after all, represented by experienced counsel and solicitors. In these circumstances, any financial difficulties Warren might face as a result of a costs order against him is of limited relevance and results from his own conduct. That Warren was emotionally invested in bringing and maintaining the proceedings is not a matter that can, or should, be given undue weight in determining the question of how the burden of costs is to be borne.
14. Yet, there are two aspects of the matter that have given me cause to pause. The first is part of the conversation referred to, by Patricia, in [114] of the principal judgment.
15. The second is the evidence of Patricia, at T177, that the deceased did say a number of times, after the allegations were made by Warren, to him, in Patricia's presence, "I'll look after you".
16. It is clear that the making of any costs order in favour of Patricia would result in significant detriment to Warren's financial circumstances.
17. On this aspect it is necessary to note that the conversations referred to were in an entirely different context and may not now be important. However, that the deceased appears to have wished to assist Warren is a relevant consideration in determining the justice of the case.
18. Ultimately, I have come to the view that Patricia should not be deprived of the costs incurred in successfully defending the proceedings brought by Warren. To order otherwise would not provide a just outcome, particularly in circumstances where Warren brought the proceedings comfortably knowing that if he was unsuccessful, he would not incur any costs of his own. An order that would result in a plaintiff not being liable for a defendant's costs in circumstances that exist in this type of case (a conditional costs agreement and offer of compromise/Calderbank offer) would result in a plaintiff having little incentive to make an appropriate decision about the prospects of success of his, or her, case, or give serious consideration to the terms of an offer made by a defendant to resolve the proceedings.
19. Yet, it seems to me that the two matters to which I have referred above, which gave me cause to pause, go to the basis upon which Patricia's costs should be calculated, rather than to whether Warren should pay those costs.
20. In my view, bearing in mind all of the matters in the case, and in the exercise of my discretion, I have come to the view that Warren should pay Patricia's costs, calculated on the ordinary basis, of the proceedings, and I so order. Those costs should include the costs of this application for costs. Insofar as the Defendant's costs are not paid by the Plaintiff, her costs calculated on the indemnity basis should be paid out of the estate of the deceased. I make no order as to Warren's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2016