Plaintiff v Defendants

1 In this proceeding, I determined to dismiss the plaintiff's application under Part IV of the Administration of Probate Act 1958 (the Act) for provision from the estate of his former domestic partner, Fay Ping Chao.[1] The remaining issue for determination is the liability for the successful defendants' costs of the proceeding.

2 The unsuccessful plaintiff seeks that the defendants' costs be paid from Ping's estate. The defendants seek that the plaintiff pay their costs on a standard basis until after the making of an offer of compromise in accordance with r 26.02 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules), and on an indemnity basis thereafter.

Costs in Part IV claims: general principles

3 The Court has a general discretion in respect of costs which is to be exercised judicially and in accordance with Order 63 of the Rules.[2] There are no fixed rules as to the appropriate costs order to be made in particular circumstances; ultimately the Court must be guided by what the justice of the case requires.[3]

4 Until 1 January 2015, there existed legislative provisions which affected the exercise of the Court's discretion in respect of costs in relation to claims under Part IV of the Act. The Court's general discretion in respect of costs was affirmed by s 97(6) of the Act, but then qualified by s 97(7) which provided that, in family provision cases, a court could order costs against an applicant if satisfied that the application had been made 'frivolously, vexatiously or with no reasonable prospect of success'. The general effect of these provisions was to permit a more benevolent approach to the legal costs of an unsuccessful applicant by providing for the award of their costs out of the deceased's estate.

5 These provisions were repealed by s 6(7) of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (the Amending Act). The parties referred to the following extract from the Attorney-General's second reading speech in relation to what became the Amending Act:[4]

In addition to limiting who can make a claim on a deceased estate, the bill seeks to deter unmeritorious family provision claims by repealing the current family provisions costs provisions. Under the current provisions, the court may order that the applicant pay the defendant executor's costs if an application has been made frivolously, vexatiously or with no reasonable prospect of success. The courts have interpreted the inclusion of these specific costs provisions to mean that the usual rule as to costs does not apply in family provision cases. The result is that parties do not usually bear the risk of paying costs in the event that they are unsuccessful, removing a disincentive to bringing weak or opportunistic claims while forcing some families to settle those claims to avoid having legal costs taken out of the estate. The bill repeals this cost rule as a signal that there is no need for particular leniency towards [un]successful[5] claims in family provision matters, and that the usual cost rules should apply.

6 The meaning of the 'usual order as to costs' to which the Attorney-General is to be taken to have referred was explained by McHugh J in Oshlack v Richmond River Council[6] as embodying:

... the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party.[7] If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

7 The parties accepted that, since the Amending Act commenced operation, the generally applicable principles in relation to the Court's discretion in respect of costs in claims under Part IV of the Act were accurately summarised by McMillan J in Re Schlink; Keane v Corns (No 2):[8]

Costs are in the discretion of the Court, unless otherwise provided by an Act or the Rules. As from 1 January 2015, costs in respect of family provision claims are to be determined in the exercise of the Court's general costs discretion.

The usual order as to costs is that a successful party in litigation is entitled to an award of costs in its favour and the unsuccessful party bears the liability for the costs of the litigation, that is, costs follow the event. The relevant 'event' is success in the proceeding or on particular issues. The central guiding principle is that the Court ought make an order that is fair and just between the parties in the circumstances of each case.

With costs in respect of family provision claims being determined in the exercise of the Court's general costs discretion, there is no basis for an unsuccessful plaintiff to presume that they will be awarded their costs out of the estate. Further, it may be fair and just as between the parties for an unsuccessful plaintiff to be ordered to pay the estate's costs, having regard to the size of the estate, the reasonableness of the plaintiff's conduct, and the financial burden that would otherwise fall on the residuary beneficiaries.

8 Counsel for the plaintiff submitted that the Court should also have regard to the observations of Derham AsJ in respect of costs in Innes-Irons & Anor v Forrest (Costs).[9] In that case, in which the Act as amended by the Amending Act applied, Derham AsJ described the Attorney-General's second reading speech as making 'absolutely clear [...] that the general discretion as to costs and the guidelines and practices that have developed in the exercise of the discretion are now to be applied'.[10] However, he also observed that, '[t]he move towards the application of general costs principles must therefore take into account the special characteristics of family provision cases, where relevant'.[11] In support of that proposition he cited the following observations by Whelan J in Webb v Ryan (No 2),[12] decided in 2012 before the Amending Act commenced operation, which Derham AsJ said remained true:[13]

Family provision cases are different to other civil cases in some respects. By their nature, they can be more difficult to predict. There can be wide divergence between different judges as to the appropriate outcome. Claimants often establish a moral obligation, even if they fail. Quantification is inherently uncertain. A claimant might fail because, although a responsibility was owed to him or her, investigation reveals that a greater responsibility was owed to others or that there simply is "not enough to go around". Unlike other civil cases, the financial circumstances of the unsuccessful claimant may be an important factor in relation to costs, as they were in Coombes and in Sherborne (insofar as it concerned the unsuccessful claim by Julia Gilroy).

9 These observations were made in the context of a discussion of the manner in which the Court's broad discretion in relation to costs may be exercised in relation to claims under Part IV of the Act. This included a detailed consideration of ss 97(6) and (7) of the Act which then applied,[14] a reference to the judgment of Gaudron J in Singer v Berghouse,[15] and a consideration of various authorities from Victoria and other States. Having considered those matters, Whelan J made the above observations about the differences between family provision cases and other civil litigation and concluded as follows:[16]

Having said that, it seems to me that the tendency to move towards the application of general costs principles, whilst recognising the special characteristics of family provision cases where they are relevant, is a sound and sensible approach. It reflects the changes made in 1997 which significantly broaden the range of potential claimants, it recognises the pressures to settle placed on executors if claimants do not see themselves as at risk on costs if they fail, and it recognises that when costs on unsuccessful claims do not follow the event they are in effect borne by the beneficiaries. It is always necessary to take account of all of the relevant circumstances, including the special features of family provision cases where those features are relevant, and to determine what is just in each case. But it is also important, particularly when one is dealing with claims by non-family members, to bear in mind the observation of Giles JA in Jvancich that often the justice of the case "is not remote from costs following the event".[17]

10 It is apparent that what Whelan J referred to as 'the tendency' to move towards the application of general costs principles has subsequently been overtaken by the changes effected by Amending Act. Since those amendments have become operative, it is now unambiguously clear that the usual costs rules, including the principle of costs following the event, are to apply, and that no particular leniency is to be adopted towards unsuccessful claimants in family provision proceedings. However, that does not mean that the discretion is to be exercised in a mechanistic way without regard to the justice of the case. The above underlined sentence from Whelan J's judgment accords with the statements of principle by McMillan J in Re Schlink and remains apposite in ensuring that justice is done between the parties when considering the exercise of the Court's discretion in respect of costs in proceedings under Part IV of the Act.

11 On 30 January 2024, the defendants' solicitor served on the plaintiff's solicitor an offer of compromise which contained an offer to settle the plaintiff's claim for $150,000, plus costs on a standard basis, with the settlement sum payable within seven days of acceptance and the costs sum within 14 days of agreement or taxation (the offer). The offer, made approximately ten months before trial after some of the affidavits to be relied on at trial had been filed, remained open for acceptance for 14 days. It was not accepted by the plaintiff.

12 The offer was made in accordance with r 26.02 of the Rules, and otherwise complied with the requirements of Order 26. Rule 26.08(4) states (underlining added):

(4) Where an offer of compromise is made by a defendant and the plaintiff unreasonably fails to accept the offer and the claim to which the offer relates is dismissed or judgment on the claim is entered in favour of the defendant, then unless the Court otherwise orders -

(a) the defendant shall be entitled to an order against the plaintiff for the defendant's costs in respect of the claim until 11.00 a.m. on the second business day after the offer was made, taxed on the ordinarily applicable basis; and

(b) the defendant shall be entitled to an order against the plaintiff in respect of the defendant's costs after the time referred to in paragraph (a) taxed on an indemnity basis.

13 It was common ground that, in seeking that the plaintiff pay their costs on an indemnity basis after the making of the offer, the defendants carried the burden of persuading the Court that the plaintiff's failure to accept the offer was unreasonable. In assessing whether a plaintiff has unreasonably failed to accept an offer of compromise, the Court will consider similar factors to those addressed in assessing reasonableness in relation to Calderbank offers.[18] These 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 are expressed; and whether the offer foreshadowed an application for an indemnity costs order in the event of rejection.[19]

14 The plaintiff advanced two principal contentions as to why the defendants' costs should be paid from the deceased's estate.

15 First, it was submitted that his claim for provision was borderline in that it could have gone either way, or was otherwise reasonable. It was submitted that the plaintiff's application failed because the Court determined that the deceased did not breach her moral duty to him by providing him only with her superannuation in the amount of $378,164.89 in circumstances where the Court found that:

(a) their domestic relationship was not long;

(b) the deceased had not been maintaining the plaintiff; and

(c) the plaintiff's future prospects of financial independence meant that he had no need.

16 In relation to the first of these matters, counsel for the plaintiff emphasised that the plaintiff's claim did not lack intrinsic merit given that it was a claim brought by a domestic partner. At trial, it was uncontroversial that the deceased owed the plaintiff a moral duty to provide for him. It was submitted that the legislation recognises that claims brought by domestic partners stand apart from other claims and are effectively on a higher footing. This is because such claimants do not have to satisfy s 91(4)(c) of the Act, the requirement for adult children.[20] This meant that the Court did not have to take into account the degree to which the plaintiff was not capable, by reasonable means, of providing adequately for his own proper maintenance and support. The effect being that claims brought by domestic partners are treated more generously than other claims, and certainly claims by adult children.

17 It was also submitted that community standards required that domestic partners be properly looked after by their partners, as indicated by the domestic partner's statutory legacy in s 70M of the Act which specifies the amount that a partner of a deceased is entitled to as part of their entitlement where the deceased dies intestate. At the relevant time, the value of the statutory legacy was $559,660; the deceased left the plaintiff about $181,500 less than this amount. The fact that the plaintiff was the deceased's domestic partner was therefore itself an important factor in properly characterising the claim as being borderline and reasonable.

18 As to the length of the domestic relationship, the plaintiff referred to the observation in the reasons about the uncertainty in determining when a domestic partnership commences.[21] By reference to various aspects of the evidence and the findings of fact, it was submitted that, if the Court had 'viewed those facts differently', it may have instead been concluded that the relationship was not short. In particular, it was open on the evidence for the Court to have found that the deceased and the plaintiff were in a nine year domestic partnership, punctuated by 10 months separation, rather than a domestic partnership of three years and four months, as ultimately was found by the Court. It was submitted that this would likely have significantly affected the result of the claim.

19 As to the finding that the deceased had not been maintaining the plaintiff, it was submitted that, given the evidence that the plaintiff and the deceased had spent the majority of their relationship over nine years sleeping at the larger and more comfortable premises at Parslow Street, it was open for the Court to have found that that this was a form of maintenance provided by the deceased to the plaintiff.

20 It was also submitted that the Court's finding that the plaintiff did not have any need 'could have gone either way'. It was submitted that it was open to the Court to have found that the plaintiff's evidence that he was capable of purchasing an apartment worth between $600,000 to $800,000 was not proper provision because, having regard to the circumstances of the case, this would have amounted to a 'very basic' apartment. It would have been open to the Court to find that the plaintiff's needs extended beyond the provision of basic accommodation in the circumstances and to make some small further provision for the plaintiff to assist him to get into the property market.

21 By reason of the above matters, it was submitted that the plaintiff's claim was properly viewed as borderline, or otherwise as reasonable. A modest grant of further provision could well have been ordered had the Court come to a different conclusion on one or more of these contested issues. It was submitted that the borderline nature of the claim was confirmed by the offer made by the defendants; its quantum amounted to an acknowledgement that the plaintiff had a genuine claim.

22 The plaintiff's second principal contention was that a costs order would severely affect his financial position. Counsel for the plaintiff referred to the findings by the Court that, apart from superannuation, the plaintiff had savings of approximately $550,000 (including the deceased's death benefit of $378,164.89), and that he otherwise had income and was capable of purchasing a property for around $800,000 - $850,000. It was also (correctly) submitted that the defendants' legal costs of the proceeding were about $214,508.93.

23 Given these findings, if the plaintiff was ordered to pay the defendants' costs, he would no longer be capable of purchasing a property for around $850,000, as his savings of approximately $550,000 would be reduced by the defendants' costs of about $214,508.93. In circumstances where the Court concluded that the provision provided to the plaintiff was sufficient, the imposition of a costs burden on the plaintiff would necessarily erode that sufficiency. The plaintiff relied on McDonald J's reference in Coombes v Ward (No 2)[22] to the 'extremely detrimental effect' an order for costs would have on the unsuccessful plaintiff in that proceeding.

24 The plaintiff also emphasised the Court's finding that, under the Will, after payment of their own costs, Tat Woon would receive $2,125,790 and Fay would receive $407,862.98. Neither had any competing financial need and, as medical specialists, they would likely have substantial earning capacity in their future careers. An order that their costs be paid from the estate would have a minimal impact on their financial positions, particularly given the significant size of the estate.

25 It was submitted that a costs order against the plaintiff would leave him in a financial position which undermined one of the key reasons why his claim was rejected, being the absence of need. Reliance was placed upon decisions of the Court of Appeal of New South Wales[23] for the proposition that, in such circumstances, the burden of paying costs may leave the claimant in a financial position which so alters the basis upon which the claim was rejected as to justify a further application for provision.

26 In relation to whether his failure to accept the offer was unreasonable, the plaintiff relied upon the above submissions as to why his claim was borderline or otherwise reasonable, as well as his submissions that a costs order would have a detrimental impact on his financial position. It was also submitted that the extent of the compromise offered by the defendants was relevantly small in the context of a claim by a domestic partner against an estate worth approximately $2,8000,000, in which the intended beneficiaries had no competing financial need and were not people to whom the deceased owed a moral obligation.

27 The plaintiff also submitted that the Court should 'otherwise order' that the defendants' costs be paid from the estate because of the special characteristics of family provision cases. Reliance was placed upon the following statement by Niall JA in Adaz Nominees Pty Ltd v Castleway Pty Ltd (No 4):[24]

The assessment of whether the Court should 'otherwise order' is a question of judgment and impression, assessed at the time the offer of compromise was made, without the advantages of hindsight. The reasonableness of the rejection of an offer is one matter that may be taken into account in considering whether to exercise the power to 'otherwise order' but it is not, by itself, determinative. It is not presumed that a refusal is unreasonable simply because the offered sum is higher than the ultimate award.

28 The defendants submitted that there was no reason to depart from the usual order that costs should follow the event.

29 Counsel rejected the proposition that the plaintiff's claim was borderline or otherwise reasonable. Reference was made to the changing nature of the plaintiff's claim in which, at the first directions hearing, he informed the Court that he sought 60% of the estate which he understood to be valued at slightly more than $3,000,000. At trial, the plaintiff moderated his position, seeking only Tooronga Road which was valued at $850,000, or an equivalent sum in cash. It was submitted that the plaintiff did not present a cogent explanation for such provision, that it was always an 'elevated' claim, and never presented as one where some small provision might be made. The rationale that the plaintiff did not have the security of an appropriate home in which to live was criticised on the basis that this proceeding was inapposite to the conventional widow/widower formulation where such provision may be appropriate, referring to various parts of the reasons in which the circumstances of the case were distinguished from those orthodox formulations.

30 The defendants also emphasised the strength of the plaintiffs' financial position, including his capacity to save around $60,000 to $70,000 per year. This showed that the plaintiff brought his claim from a robust financial position. The defendants also emphasised the plaintiff's concession in cross-examination that he could comfortably purchase a two bedroom apartment of the type in which he had lived and rented since 2017, and could purchase a property for up to $850,000. This was submitted to be fatal to the plaintiff's claim as it was not tenable for him to press a claim for provision of an amount which he accepted that he could fund himself.

31 The defendants also contended that the claim was never reasonable given the plaintiff's own evidence that the period said to constitute the domestic partnership involved 'five years of dating'. It was submitted that this evidence was damming to the plaintiff's prospects of success because it established that his domestic relationship with the deceased was short, in circumstances where she had made an informed and carefully calibrated decision in the exercise of her testamentary freedom and determined to leave the plaintiff her substantial superannuation fund.

32 It was submitted that the outcome of the proceeding could not have come as a surprise to the plaintiff given the relative brevity of their domestic relationship in which the plaintiff was not dependent upon the deceased. The defendants argued that the claim was never reasonable or borderline, nor was it finely balanced or difficult to predict. The claim was always likely to fail and there was no feature which provided a basis for departing from the usual approach to costs.

33 It was also submitted to be relevant that, because under the Will Tat Woon receives the real estate, Fay alone will bear the burden of the costs in the event that the estate is required to pay the defendants' costs of the proceeding.

34 In relation to their claim for indemnity costs, the defendants also relied upon the above matters as to why the plaintiff's failure to accept the offer was unreasonable. They submitted that the plaintiff had not provided a satisfactory explanation for rejecting the offer, other than his claim being reasonable or borderline. However, if the claim in fact was 'borderline', this underlined that there was good reason to accept what was a sensible offer.

35 Although they acknowledged that an indemnity costs order would be a 'setback' for the plaintiff, the defendants submitted that his financial position was such that it would be a setback he was capable of absorbing. They also emphasised that the offer was provided well in advance of trial when the plaintiff was able to assess the merits of the case in a considered manner. There was no material change in the litigation subsequent to the offer which would have affected the outcome at trial; the plaintiff decided to take the risk and run his claim at trial. They relied upon the following statement by Murphy J in Page v IND:[25]

...a plaintiff must determine whether to accept [an offer] or not, and in doing so must be assumed to have taken into account the several contingencies arising in the case and the risks which are to be run if the case is to proceed, and if he does not in accordance with the rules accept the payment into court, he must be taken to have accepted that he will run the risks in question and he must abide the consequences, whatever they turn out to be.

36 The defendants submitted that the matters upon which they relied as to the plaintiff's claimed unreasonable failure to accept the offer likewise weighed heavily against the plaintiff as to why no proper basis had been established to displace the prima facie position established by r 26.08(4) of the Rules. As to the capacity of the Court to 'otherwise order', they relied upon the statement by Ashley J in Simonovski v Bendigo Bank Ltd that:[26]

It is clear that an order otherwise should not be lightly made; that the position prima facie established by the Rule is a strong one, not easily displaced.

37 Counsel for the plaintiff submitted that the claim for further provision was reasonable because it was moderated by the plaintiff seeking only Tooronga Road in the context of a large estate, where the beneficiaries had no competing need and where he was a domestic partner without any property. The plaintiff could not be criticised for seeking Tooronga Road as it was within the Court's power to grant this form of provision, as was any lesser amount deemed appropriate by the Court.

38 In relation to the length of the relationship between the plaintiff and the deceased, it was submitted that s 35(2) of the Relationships Act 2008 does not specify that the characterisation of a relationship by a party is factor the Court ought to consider. As such, the plaintiff's own evidence that the nature of their relationship in the first five years was 'dating', ought not diminish his claim.

39 With respect to the burden of the defendants' costs, counsel for the plaintiff submitted that it cannot be assumed the costs would be borne by the residuary estate because there was no evidence as to any agreement which may have been entered into between the defendants as beneficiaries in relation to costs.

40 It was further submitted that the defendants had failed to establish that the plaintiff acted unreasonably by declining the offer. Counsel for the plaintiff also emphasised that, at the time the offer was made, most of the affidavits had not yet been filed in the proceeding, which the Court should take this into account when assessing what the plaintiff knew, or ought to have known, when considering the offer.

41 Central to the plaintiff's submissions is the proposition that his claim for provision was borderline or otherwise reasonable. I do not accept this contention; to the contrary, as the defendants submitted, it was an extravagant claim.

42 The plaintiff pressed his claim in circumstances where he must be taken to have known (or, properly advised, should have known) two matters that fundamentally undermined his claim: (a) that he was not in a position of need; and (b) that his relationship of nine years with Ping included a period of what he himself called 'five years of dating'.

43 The existence of need on the part of a claimant under Part IV of the Act is foundational to a successful claim for provision.[27] Here, the claim which the plaintiff pressed at trial was to fulfil an asserted need for accommodation in the form of Tooronga Road. Yet, his own evidence at trial was that he could afford to purchase such an apartment by his own means, and still have surplus funds.

44 I also reject the plaintiff's submissions concerning the length of the relationship between the plaintiff and the deceased. Those submissions fail to grapple with what must reasonably be viewed as a major weakness in his case, based on his own evidence, that he subjectively considered the first five years of his relationship to be different in character from the years that followed.[28] It is immaterial that s 35(2) of the Relationship Act 2008 does not specify that a party's characterisation of a relationship is a factor that the Court is to consider; the section requires the Court to take into account 'all the circumstances' of the relationship. Further, the submission that it was open for the Court to have found that Ping was maintaining the plaintiff by reason of the fact that they had spent the majority of their relationship over nine years sleeping at the larger and more comfortable premises at Parslow Street is without merit when, in his own evidence, this included 'five years of dating'.

45 Significantly, there should not have been any real uncertainty in relation to the above matters as they were based on the plaintiff's own knowledge, and evidence he gave at trial.

46 I accept that the New South Wales authorities on which the plaintiff relied are authority for the proposition that a court may exercise its discretion and not award costs against an unsuccessful applicant for provision from a deceased's estate where the plaintiff would become impecunious if a costs order was made and where the claim was reasonable or borderline.[29] That, however, is not this case. Not only was the plaintiff's claim not borderline or reasonable as I have explained, even if it was so characterised, the material before the Court does not establish that he will be rendered impecunious by an adverse costs order.

47 Absent circumstances which might warrant the costs discretion being exercised benevolently in favour of an unsuccessful claimant for provision, potentially including the claimant's impecuniosity, the exercise of the Court's discretion in respect of costs should be guided by the usual rules as to costs. This includes the making, where appropriate, of the usual order as to costs. Contrary to the implicit basis of the plaintiff's submissions, the discretion is not to be exercised on the premise that an unsuccessful plaintiff should not be left worse off, or even markedly worse off, than the circumstances which would have prevailed under a will which has been the subject of an unsuccessful challenge.

48 The fact that an order that the defendants' cost be paid from the estate would have a minimal impact on the defendants is not a relevant consideration in considering the application of general cost principles. Further, differences in the capacity of parties to bear the burden of costs is a familiar aspect of litigation and not a feature peculiar to Part IV proceedings which warrants a different approach to the exercise of the discretion in respect of costs.

49 In relation to the question of indemnity costs, the above considerations likewise lead to the conclusion that the plaintiff acted unreasonably in failing to accept the offer. More generally, the plaintiff's submission that his claim was borderline itself confirms that his rejection of the offer was unreasonable. It was unreasonable for the plaintiff to reject a substantial offer of $150,000 plus costs in circumstances of a domestic relationship of limited duration, where he received a substantial benefit from the deceased worth $378,164.89, and where he must be taken to have known that he could himself comfortably meet the need for accommodation which he instead sought to be met by the estate. As the defendants submitted, if he had accepted the offer, he would have received, in total, a substantial benefit from the deceased of approximately the same value as the statutory legacy in s 70M of the Act. Instead, he put that outcome at risk by seeking more from the deceased's estate and rejecting an offer made in clear and unambiguous terms. He made this election in the context of the potentially serious costs consequences provided by r 26.08(4) of the Rules at a time when he should have been able to make a reasonably informed assessment of his prospects of success.

50 The plaintiff has not made out a basis for which the Court should otherwise order as provided by r 26.08(4) of the Rules. In the circumstances, for the reasons I have given, it is appropriate that the plaintiff pay the defendants' costs of the proceeding, there being no good basis to depart from the usual order as to costs, and that those costs be paid on an indemnity basis from 1 February 2024 as a consequence of the plaintiff's unreasonable failure to accept the offer.

51 In reaching this conclusion, I have taken account of the plaintiff's alternative submission that the Court make an order which would have the effect of reducing the costs burden on the plaintiff,[30] having regard to the overall justice of the case and the special characteristics of family provision cases. I have already addressed the key features of this proceeding which inform an assessment of the overall justice of the case in my consideration of the plaintiff's primary case, and I do not consider that there are any special characteristics which warrant a departure from the usual rules as to costs.

[1] See Lennan v Chao [2025] VSC 220 (the reasons). These further reasons for judgment should be read in conjunction with the reasons. Except where otherwise apparent, I have used the abbreviations defined in the reasons.

[2] Supreme Court Act 1986 s 24.

[3] MA & J Tripodi Pty Ltd v Swan Hill Chemicals Pty Ltd [2019] VSCA 46 [154].

[4] Hansard, Legislative Assembly, 18 September 2014, 3443.

[5] Counsel agreed that 'successful' is a typographical error in the extract, and should read as 'unsuccessful'.

[6] [1998] HCA 11; (1998) 193 CLR 72 [67].

[7] Latoudis v Casey [1990] HCA 59; 170 CLR 534, 543 (Mason CJ), 562-3 (Toohey J), 566-7 (McHugh J); Cachia v Hanes (1994) 179 CLR 403, 410 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ).

[8] [2020] VSC 417 [7]-[9] (omitting citations) ('Re Schlink'). Although an appeal was successful in relation to the trial judge's award of costs on an indemnity basis, the Court of Appeal agreed with the trial judge that the unsuccessful plaintiff should not have had her costs of the proceeding paid out of the estate and that she should pay the defendant's costs of the proceeding: Keane v Corns [2021] VSCA 223 [96].

[9] [2017] VSC 10 ('Innes-Iron v Forrests').

[12] [2012] VSC 431 ('Webb v Ryan').

[13] Innes-Irons v Forrest (n 9) [12] citing Webb v Ryan (n 12) [37].

[14] Webb v Ryan (n 12) [26]-[28].

[15] [1993] HCA 35; (1993) 114 ALR 521.

[16] Webb v Ryan (n 12) [38] (underlining added).

[17] [2004] NSWCA 397 [11].

[18] Re Skytraders Pty Ltd (No 2) [2022] VSC 523 [24] (Button J). See also_: Di Falco v Emirates (Ruling No 3 - Costs Ruling)_ [2019] VSC 732 [7] (Forbes J).

[19] Ibid [25]; Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435 [25].

[20] Being children defined under s 90 (f)-(g) of the Act.

[22] [2002] VSC 84 [19].

[23] McCusker v Rutter (2010) 7 ASTLR 137 [34] ('McCusker v Rutter'); Haertsch v Whiteway (No 2) [2020] NSWCA 287 [9] ('Haertsch v Whiteway').

[24] [2024] VSC 261 [38].

[25] [1981] VicRp 19; [1981] VR 170, 173-174 (concerning the then provisions relating to payments into court).

[26] [2003] VSC 139 [17].

[29] McCusker v Rutter (n 23) [34]; Haertsch v Whiteway (n 23) [7], [9].

[30] By way of example, the plaintiff proposed that the Court could make no order as to costs up to the date of the offer, and an order that the plaintiff pay the defendants' costs on a standard basis thereafter.