Mrs Smith left an estate of approximately $450,000 net, subject to the costs of these proceedings. The whole estate, apart from certain household effects and articles of personal adornment, passed to charities, half to the National Heart Foundation of Australia and half to the Australian Kidney Foundation.

The three plaintiffs are Leona Barnes and Judith Shearer, who are twins aged 58, and John Hawke aged 60. They are the surviving children of the late Mrs Smith.

The testatrix's husband, the father of the three plaintiffs, died in 1971. In July 1985 the testatrix remarried a widower, Ivor Smith. That marriage on all accounts was not a happy one and the parties separated on two or three occasions. Ill health claimed both parties towards the end and Mr Smith died on 19 December 1994, about three months after the testatrix.

Mrs Barnes, for whom Mr Hallen SC appeared, was married and is divorced with four children, who are now aged between 31 and 48. She is currently receiving a disability pension and, together with income from interest, her income is about $214 a week. She has a modest car and about $45,000 in the bank. She lives with her daughter Loretta in a granny flat at Loretta's home in Canley Vale. This plaintiff has given evidence as to her expenditure, which on a weekly basis very much exceeds her income and has done so for the last few years. She has been living off capital. She has no home of her own. She believes that the testatrix should have provided her with $400,000 or thereabouts for a house and a further $18,200 to upgrade her car.

Mrs Shearer, for whom Miss Jane Needham appeared, is separated from her husband, though not divorced. She has three adult children, Gail now 32, Martin 30 and Jeffrey 26. Martin has a mental illness and lives in care independently, though he visits her from time to time. She says that Jeffrey also suffers from psychiatric or psychological problems and does not earn income. Gail, although 32, is still studying for her first degree and is put forward as a person who would not be capable of having any professional qualifications for at least some years in the future.

Mrs Shearer owns a house on two and a half acres of land about ten kilometres west of Indooroopilly on the Moggill Road which she says is worth $295,000. She has shares currently worth $23,500 and about $3,000 in the bank. This is $150,000 less than she had eighteen months ago. She reckons her weekly expenditure also to be of a very high level, and as her income is very modest she too has been living off capital for some years, and that, plus repayment of some of the costs of these proceedings, accounts for the decrease in her capital assets over the last eighteen months.

Mr Hawke, for whom Mr Willmott appeared on the first day and Mr Gray subsequently, is married. He has been married to the same woman for thirty-eight years, they have four grown up children. Mr Hawke originally went into a business with his father. He then sold that business and became a TAFE teacher for many years, but he and his wife went into their own import business which they commenced in 1992 and still operate. Mr Hawke produced a list of his assets and liabilities. It is harder to assess this list compared with the lists of his sisters because it involves business assets, but the total net assets of Mr Hawke, including their house at Waitara and three motor vehicles, total about $600,000.

Mr Gray says it is quite wrong in principle to add Mrs Hawke's assets to Mr Hawke's. It is certainly true that it is, generally speaking, an error to treat husband and wife as one person for any purpose these days (see Waterhouse v Bell (1991) 25 NSWLR 99). However, what the Court has to do in the instant case is to consider the likelihood of Mr Hawke having the benefit of his wife's property. On the evidence before me there is a very strong bond between Mr and Mrs Hawke. They would appear clearly to be life partners as well as business partners, and I would think that the evidence clearly shows that despite separate ownership Mr Hawke is likely to have the benefit of his wife's share of assets as well as his own so that it is appropriate to take that $600,000 as a round figure.

Included amongst Mr Hawke's liabilities is $40,000 which he promised the testatrix by deed to pay to her grandchildren after her death. This liability arose out of a dispute that commenced in 1988. There is no doubt that the testatrix advanced $40,000 to Mr Hawke. He says that was a gift. However, in 1989 the testatrix sued Mr Hawke to recover it as a loan. Many of the details of the progress of the dispute between the testatrix and Mr Hawke appear from the evidence, though not the complete picture.

We have in evidence the demand made on Mr Hawke and his reply through his solicitors. This brought from the testatrix a handwritten letter to her solicitors which completely denied Mr Hawke's account. The matter went to the District Court where an arbitrator found in favour of the testatrix. Mr Hawke sought a re-hearing before a judge, the matter was not reached, and on the second occasion it was listed the matter settled by the deed to which I have already referred. The evidence shows that there was no contact other than through their solicitors or in court between Mr Hawke and the testatrix from April 1988. This was about the time of the demand, or at least the personal demand made by the testatrix, and in the absence of any other suggestion I must conclude that the non-contact was primarily brought about by the existence of a dispute.

Earlier wills of the testatrix are in evidence. They show that Mr Hawke was never an object of the testatrix's bounty and that she gave a reason that Mr Hawke had already been well provided for by the testatrix's first husband and by herself, so that it was not appropriate to make further benefaction.

Mr Gray says that the court must be very careful about evaluating the evidence of the testatrix's statements. He puts, in general terms, that a testatrix may be misguided, may misapprehend or misunderstand the real position, or even in some cases be malicious, and that the court cannot uncritically accept what the testatrix may have said to friends, or in a previous will, or to her solicitor as the truth.

This proposition was certainly correct before s 32 of the Family Provision Act, but in view of that section the utterances of the testatrix are now admissible. However, Mr Gray's proposition is still correct as to the weight which one would give to statements made by the testatrix.

On the other hand, statements made by applicants about the testatrix also must be received with some reserve, as the testatrix is no longer able to contradict them. Equity has long taken the view that claims against a deceased estate must be watched carefully and, indeed, in many cases, as a practical matter, Equity requires corroboration. In the present type of proceedings courts do not look for corroboration, but just as they are careful not to accept uncritically every statement the testatrix makes, so courts are also careful not to accept uncritically every statement that an applicant makes about a testatrix.

One of the basic facts of the dispute over the $40,000 is that it was a long and bitter one that lasted for some years. Throughout all of the time the testatrix was not a well woman, particularly from 1991 onwards, and her utterances to her friends suggest that one of the things that really did hurt her was that the dispute was being pressed on in court over a relatively small sum despite her illness.

Under the Testators Family Maintenance & Guardianship of Infants Act 1916, s 3 (2), the court could refuse relief if there was conduct by an applicant disentitling him to relief. However, this is not part of the present Act. Section 9 (3) (b) of the present Act does make a provision which covers this aspect of the litigation, but it only tells the court to take into consideration, if it considers it appropriate, the character and conduct of the eligible person. Accordingly, there is no longer, it seems to me, any onus on the executor to prove conduct disentitling. The court takes all relevant circumstances into account, including the actual state of affairs that can be established objectively, as well as the conduct.

There are some dicta in the authorities which suggest that one still does need to look to see whether the state of war between parents and child was the fault of the parents or the child. For instance, Priestley JA in Wentworth v Wentworth Court of Appeal, 3 March 1992, unreported, p 39, said that one aspect of that case was the question as to whether the plaintiff's behaviour extinguished the testator's duty to make provision for his daughter. See also the judgment of Master Macready in Gregory v Rubal - 19 October 1992, which suggests that it may be necessary to consider not only the estrangement, but also the extent to which the person contributed to that estrangement.

Notwithstanding these dicta, it may well be that in certain cases the mere fact of the estrangement will be sufficient for the court to deny the applicant relief, even if there is no evidence one way or the other to enable the court to establish whether it was the fault of one or of both.

It is the applicant's obligation to satisfy the court under ss 7 and 9 of the Act that the testatrix ought to have made proper provision for the applicant in all the circumstances of the case, and one of the important circumstances of the case is the fact of a state of "no speak" between the parties, quite apart from whether that state was solely caused by one party or the other. Indeed, even so far as the daughters are concerned, and I will come on to that shortly, it is not alleged that the "no speak" situation came about through the fault of either side, but rather the attitude of Ivor Smith.

Returning, however, to Mr Hawke's situation. The situation between himself and his mother would seem to flow from the dispute about the $40,000. It had been in existence for six years. That situation may have been brought about in part by the testatrix making an unjustified claim. There is some evidence that the testatrix was egged on in making the claim by Ivor Smith, and to a lesser extent by Mr Hawke's sisters.

However, it would seem that the arbitrator found against Mr Hawke, and the whole of the material would suggest to me that it is more likely than not that the mother's statement was justified. I am not able to find that the mother made an unjustified claim which was the cause of the rift between the parties. In any event, there is a lot to be said for the proposition that to pursue the litigation when the testatrix was ill in 1991/1992 was in itself a matter which would be a relevant circumstance as to whether any order should be made at all.

Returning to the female plaintiffs, the evidence shows that up until 1991 the relationship between them and their mother was good or at least satisfactory. However, even in 1985, within a year after the marriage of the testatrix to Mr Smith, there were some problems brewing. Mrs Connie Kelly, who was a friend of the testatrix, gave an affidavit and she was not cross-examined on it. Mrs Kelly says that in January 1985 the testatrix said to her that her daughter Leona Barnes had called and that Ivor Smith wouldn't let Leona Barnes in and abused her at the front door. The testatrix also said to her friend:

"He hates my girls, he is too jealous of them and every opportunity he can he berates them both."

This state of affairs continued on and in 1989 Mrs Kelly said that the testatrix was worried that Leona Barnes was not a bit well, and although the testatrix had been visiting her in hospital she was feeling very helpless because she could only ring when Ivor Smith had gone down to the shops. Mrs Kelly also gave evidence that on many occasions the testatrix referred to the female plaintiffs as "my twins" and said that she had been blessed to have them -

"They will do anything for me and we have wonderful times together."

However, in late 1991 Ivor Smith told the testatrix that she would have to choose between him or her mongrel daughters. It would seem from the evidence that the testatrix made that choice and chose Mr Smith, though there were still problems between Mr and Mrs Smith at that time and subsequently.

On about 2 February 1992 the female plaintiffs visited the testatrix at the Seventh Day Adventist Sanitorium Hospital where the testatrix had gone because of renal problems. Both female plaintiffs gave evidence about that occasion. Mrs Barnes said that the sisters went together, they took their mother flowers and kissed her and their mother said:

"Love I don't want you here, please go immediately, if Ivor comes and finds you here there will be trouble and he will say the minute I turn my back you have the twins back again."

"Mum, please, we love you and want to see you, don't be frightened, we are here with you"

"I am frightened of what Ivor will do, please go immediately, please do it for me, I am so tired and too ill to cope with it."

Mrs Barnes said she stayed for about another 15 minutes.

Mrs Shearer says that she flew down from Brisbane to see her mother who said:

"Please leave, I want you to go, if Ivor sees you I will be in trouble. He will think I have gone behind his back to the twins. Go immediately for my safety."

Mr Blackburn-Hart for the defendant trustee put to each of the female plaintiffs that there had been an altercation at the hospital on that day which had upset the testatrix. Both denied this.

The reason why Mr Blackburn-Hart put that question was because there was evidence available to the Public Trustee that that in fact was the situation. The will, of which Probate was granted to the Public Trustee, came about through the efforts of Mr Sheehan, the Public Trustee's Branch Manager at Hurstville. He says that he was contacted by Mr Smith to the effect that his wife was to have dialysis treatment, that she had problems with her family and needed to make a will. Mr Sheehan said he would need to talk to Mrs Smith directly and he then did so. On the phone Mrs Smith said:

"I would like to make a will. I have had a lot of problems with my daughters. Their attitude to my marriage to Ivor has been terrible. Recently when I was admitted to Sydney Adventist Hospital they caused a major scene. I don't think I could ever forgive them."

She then said that she wanted to leave her whole estate to charity, naming the two charities which are the beneficiaries under her last will. She then went on to say that her husband was happy with the terms of the will:

"but I think my daughters may contest it. They have caused me great worry and stress and I think they have caused Ivor's heart problems. I don't want my daughters to share in any way. I feel that my son has been adequately provided for during the lifetime of my first husband and myself. My first husband gave him an overseas trip, several motor vehicles, and the garage and panel beating business. I don't want him to get anything further from my estate."

Mr Sheehan told Mrs Smith that as she was not well he would come out and see her to confirm her instructions. He prepared a draft and later Mr and Mrs Smith attended at the Hurstville Branch of the Public Trustee and handed a document to Mr Sheehan. Mr Sheehan looked at various drafts. One of the drafts that had been prepared either by Mr or Mrs Smith mentioned that the daughters had been adequately provided for during her lifetime -

"and had caused considerable stress and trouble particularly by making efforts to prevent my marriage to my second husband Ivor Russell Smith and during the period of such marriage making concerted efforts to break it up."

"In particular they may be responsible for him suffering two heart attacks and leaving our matrimonial home. They have not communicated with us since my husband returned home in November 1991, and their acts in visiting the Sydney Adventist Hospital on 2 February this year ... and endeavouring to create a scene I will never forget nor be able to forgive."

That draft would not appear to have been actually signed or created by the testatrix, but it would seem from the way in which it came into the Public Trustee's possession that it had her approval. Accordingly, the material given to the Public Trustee's officer in 1992, obviously between 2 February and 6 March when the will was signed, is all to the effect that the daughters had caused upset or a scene, in particular by visiting the hospital, and generally by their attitude to the testatrix's second marriage.

Exhibit DX15 is the hospital notes for 2 February 1992. It shows that the testatrix was cheerful and co-operative in the morning. There is a note which is on the sheet between a note made by the nurses on duty at 7pm and 9.50pm as follows:

"Chaplain: Patient has had a very unfortunate altercation with her daughters who came to visit".

"Patient awake and states that she couldn't settle because she was thinking about her family and their visit yesterday evening."

It seems to me that in the light of the evidence of the hospital notes and the evidence of Mr Sheehan, who was not cross-examined, and in any event would appear to be a witness with nothing to gain by misrepresenting the facts, that it is more likely than not that there was some upsetting scene at the hospital on 2 February.

The only other contact that was made between the end of 1991 and the testatrix's death was made on Mother's Day 1992. On that occasion Mrs Shearer sent flowers from both sisters, and Mrs Barnes swore that the testatrix phoned her and said:

"Please don't ring me or send flowers and tell Judith not to either. Ivor threw the flowers in the rubbish, he wouldn't let me have any contact with you."

"From that moment on I respected my mother's wishes as I realised there was nothing that could be achieved in the relationship because of Ivor Smith and to do so would have been to hurt my mother and cause her more anguish."

Other evidence tends to show that this attitude was not justified. The evidence clearly is that in about August 1994 the testatrix telephoned Mrs Barnes' daughters and made contact with them. The granddaughters, if I can call them that, both swore affidavits and both were cross-examined.

The evidence of Deborah Luchi was that she was phoned by her grandmother and that she had been informed that there was no way that Mr Smith was going to come back to the unit. She says that she did not pass on to her mother any suggestion that she might ring the witness' grandmother, and so she didn't say anything to her mother, but she couldn't remember whether she had spoken to her aunt, Mrs Shearer, or not.

The other granddaughter, Loretta Svenson, with whom Mrs Barnes was living, said that she had a conversation with her grandmother in August 1994 to say that Mr Smith was in a nursing home and that she, Loretta, was now welcome in her grandmother's home. She also was a bit hazy as to how much further she had passed that message.

It is really difficult to accept that, if the only reason for not contacting their mother was that the mother was upset that Ivor Smith might interfere, when this threat was removed, no-one ever told Mrs Barnes or Mrs Shearer that this threat was over, or they did not find out through the family grapevine. However, the evidence is really not sufficient for me to be able to find that as a fact.

On the other hand, there was evidence as to the attitude of the testatrix during this period, given by one of Mr Smith's granddaughters, Suzette Regan. She says that she regularly visited the testatrix and her grandfather about once a fortnight from 1991 onwards. She remembers the testatrix talking about the court proceedings with Mr Hawke and saying that she wanted to pursue the matter because of the principle involved.

"Until about 1991 Margaret (that is the testatrix) used to talk about Leona and Judith regularly but from the end of 1991 she did not discuss them with me except to say occasionally words to the effect: 'I didn't even get a Mother's Day card from Judith and Leona' or 'Judith and Leona did not remember my birthday, they haven't sent me a card.'"

This material was not challenged, and indeed in cross-examination by Mr Blackburn-Hart the female plaintiffs admitted that they had never sent their mother a birthday card, a Christmas card or a Mother's Day card since the incident on Mother's Day 1992. As a result they had virtually no contact with their mother from 1991, and no contact at all from Mother's Day 1992 until the testatrix's death.

As I have said it is not for the Court to take uncritically either what the testatrix said or what the applicants may say about the testatrix when that is uncorroborated. In the instant case it does seem to me that although the testatrix firmly believed that her first husband had materially benefited Mr Hawke, on the evidence before me this was not fully justified, because although there had been on overseas trip made by Mr Hawke with his father at his father's expense, this was predominantly a business trip, and whilst Mr Hawke did indeed take over a business which had been purchased by his father and sell it in due course, pocketing in 1969 the proceeds of $12,000, this was certainly not such a great advancement in life that would normally indicate that such generous provision had been made for the son that he should thereafter be excluded. However, I do not really consider this matter very much because by 1994, because of the dispute over the $40,000, or predominantly because of that dispute, there was no relationship between Mr Hawke and his mother at all.

Again so far as the daughters are concerned, I accept that the circumstances between themselves and Mr Ivor Smith with their mother in between was a matter which was the primary cause of the non-contact between the end of 1991 and 1994. I just do not have the material to show whether it was as the daughters say, for which there is some corroboration of the evidence, that the problem was Mr Ivor Smith's jealousy and his attitude to the daughters, or whether there was some other cause for it. I do not find it established by the female plaintiffs that they did not contact their mother from 1992 onwards because the mother invited them not to for their own safety. It seems to me that with what little evidence there is, this suggestion runs contrary to the evidence of Mrs Regan and to the testatrix's contact with her granddaughters. It is possibly not necessary to find any more facts.

I should mention that in addition to the present set of proceedings the parties, other than Mr Hawke, were involved in proceedings 108454/95 in the Probate Division of this Court. In those proceedings the female plaintiffs sought to set aside the will being considered in the present proceedings on the ground of undue influence.

The probate proceedings and proceedings 2547/95 came on before Einstein J in September 1997. It would appear that his Honour was told that the matters had been settled, but his Honour would not proceed to implement the settlement because Mr Hawke had apparently not been notified about what was happening.

When Mr Hawke was informed he then commenced his own proceedings, 4168/97, and last December Windeyer J made the appropriate order extending the time for Mr Hawke to bring his claim under the Family Provision Act.

I have not been told what was in the proposed settlement, but I gave these set of proceedings an expedited hearing in view of the fact that the female plaintiffs' application is a 1995 suit and its hearing had been thwarted by the aborted settlement of September 1997.

The Family Provision Act is not an Act which entitles the court to just do what it thinks fair with the property of a deceased person. It is not the case that if a person gives her estate to charity, but she has children with need, ipso facto the court must make an order in favour of the children. Subject to the court making an order under ss 7 and 9 of the Act, all citizens of New South Wales have freedom to leave their estate as they think fit. It is only if the circumstances exist under s 7 that the court can interfere.

As far as is relevant, s 7 says that the court may make provision if "the court is satisfied that the person is an eligible person" to the extent that the court considers a provision ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the circumstances at the time the order is made.

There is no doubt that all of the plaintiffs are eligible persons because of par (b) of the definition of eligible person in s 6 (1) of the Act. Section 9 (2) and (3) then give some guidance to the court as to what matters it may take into consideration when considering whether an order should be made. In particular s 9 (3) indicates that the court may take into consideration: (a) any contribution made by the eligible person whether of a financial nature or not which directly or indirectly assisted the acquisition of the deceased's estate or involved the welfare of the deceased person; (b) the character and conduct of the eligible person; (c) circumstances existing before and after the death of the deceased person; and (d) any other relevant matter.

Up until the High Court judgment in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 courts considered that one of the major matters to look at was the testator's moral obligation toward the plaintiff. Certain dicta in that case indicated that some of the justices considered that such a matter, that is, the matter of moral duty, was an unhelpful judicial gloss on the statute and might be abandoned. In Victoria the judges took the view that those dicta did not affect the approach of the courts to this sort of problem. See Collicoat v McMillan - Supreme Court of Victoria, 10 October 1995, and Grey v Harrison [1997] 2 VR 359, the latter a decision of the Court of Appeal.

However, despite a very strong dissenting judgment by Handley JA, the majority in Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 made it clear that reference to moral duty and moral obligation should not be used when applying the Family Provision Act 1982. Despite a vigorous dissenting judgment, as Fraser's case is a decision of the local Court of Appeal, it must be followed by judges in this Division. However, the way in which Fraser's case has been applied by some counsel for applicants, including I must say Mr Hallen SC in the instant case, is to put that all that a plaintiff need establish is that she or he is an eligible person and has needs, and as one does not have to consider the moral obligation or moral duty of a testatrix the plaintiff must succeed.

As I pointed out in Gregory v Hudson (No 2) 18 September 1997 unreported at pages 17 and following, all that Fraser's case really did was to focus not on moral duty as such, but rather on the community standards which had been enunciated by Mahoney JA in Kearns v Ellis 5 December 1984 C/A unreported. Indeed Sheller JA said in Fraser's case at page 46:

"In deciding whether the provision for an eligible person is inadequate for that person's proper maintenance, education or advancement in life, the Court should be guided by consideration of the provision which, in accordance with prevailing community standards of what is right and appropriate, and in the circumstances mentioned in the Family Provision Act and then obtaining, ought to be made in favour of the eligible person..."

After a reference to Kearns v Ellis his Honour continues:

"I don't think this approach produces any different result from that reached by reference to the concept of moral obligation or duty as that expression had generally been understood or used by the Court. However it avoids doctrinal and inflexible Judge made rules and fulfils the Court's function adverted to by Mahoney JA at page 8 and speaking for the feeling and judgment of fair and reasonable members of the community."

I reviewed the various decisions that followed that approach in my judgment in Gregory v Hudson (No 2) and will not repeat what I then said. It will be remembered in Kearns v Ellis that Mahoney JA made it clear that when evaluating the community's expectations the Court does not just consider what it thinks fair, but it needs to evaluate the judgment of the fair and reasonable person in the community, the spokesman of which is and must be the Court itself.

Involved in the assessment is the conduct of the plaintiffs qua the testatrix, the freedom of the testatrix to deal with what is hers according to her own wishes, and the idea of a right and just testatrix recognising that she has freedom to do what she likes with her estate, but also that the community would expect her to be just before she is generous. The community's attitude is not to be judged by a feeling as to whether it is morally wrong for a person to leave property otherwise than to her spouse or children. One must really look at the obligation to provide for persons who have some dependence.

Where the applicant is a spouse it is nowadays usually thought that to leave a spouse with a mere right of residence is insufficient provision. However, that is not the case with children, and as far as I am aware it has never been said by any court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own.

In the present case no provision at all was made for any of these children. What ought the testatrix have done? One looks to the facts. In the case of the male plaintiff he has not had any contact with his mother for six years, he has been independent of his mother so far as money is concerned for many years. However, his mother did provide that $40,000 to which reference has already been made. He has been running his own business, or alternatively earning his own income independently of her for many years. He has been married for 38 years, he has had limited contact with the family.

I realise that one cannot say that he is in a particularly wonderful financial position, and that in the present economic circumstances it would certainly be handy to have further moneys, and indeed it may be, though the probabilities are that it will not be, that his business may fail, he is sixty years of age, he still owes money to the bank, and one can see that his claim through Mr Gray of twenty per cent of the estate has some foundation. However, it seems to me on the community standards that he has not made out his case that a reasonable member of the community would have expected that his mother would have made provision for him. Accordingly his claim must fail.

The claims of the daughters are in a stronger situation. However, it does seem to me that their claims really face the same problems. They had not spoken to their mother for the last two years of her life. They have lived independent lives; each has been married; each has her own family; each has lived independently of her mother financially and emotionally for many years. Both of the daughters have needs. The daughter without the house perhaps has a greater need than the other, but both have had access through their husbands and other relations to money of a capital nature, which they have lived off for many years.

Mrs Barnes is in ill health and it may be that had the relationship which was in existence at least up to 1985 continued the community would have thought that it would have been wrong for the testatrix not to have remembered at least Mrs Barnes in her will. Of course, the evidence is that she did name both daughters in her will up to 1991.

However, the evidence shows that the testatrix was a strong minded woman at least in 1991/1992, she had the choice of choosing between her husband and her daughters. She was of the view that she couldn't live harmoniously with both. She took the view, which has not been shown to be unjustified, that her daughters were causing problems with her husband and that she could not forgive them for what happened in the hospital in February 1992.

It seems to me in all those circumstances that, despite the need, that those claims must also be dismissed. Accordingly, all the claims are dismissed.

That then raises the awkward question as to costs. I will reserve consideration of costs until I have received final submissions on the matter.