Smith v O'Neill

The Background 1HIS HONOUR: In this matter, I delivered principal reasons for judgment on 21 August 2014, the medium neutral citation of which is Smith v O'Neill [2014] NSWSC 1119 ("the principal judgment"). I shall use the same terminology used in the principal judgment in these reasons. 2In the principal judgment, I found, in summary, that the Plaintiffs were not entitled to Probate in solemn form of the March 2012 Will of the deceased, Vera Smith (also known as Sue Smith), and that, whilst the grant in common form of the May 2012 Will made to the Defendant should be revoked, there should be a grant in solemn form of that Will made to him. In so ding, I concluded that I was satisfied that the May 2012 Will formed the deceased's Will and that the deceased intended it to form her Will. I also concluded that the grounds of suspicion elucidated in the pleadings, separately and cumulatively, had been answered, the Defendant having affirmatively established, to my satisfaction, on the balance of probabilities, that the May 2012 Will represented the true wishes of the deceased. A finding that the deceased knew and approved the May 2012 Will followed. 3I made orders giving effect to my conclusions at the end of the reasons for judgment. (It will be necessary to amend the orders to correct two typographical errors, the first relating to the date of the grant of Probate in common form in Paragraph 222(a) and the second involving the addition of the words "balance of the" before "Cross-Claim" in Paragraph 222(h).) 4I stood the matter over until today for the determination of costs. I am now dealing with that issue. 5In the principal judgment, in relation to the costs of the proceedings, I wrote, at [218] - [221]: "Costs It is to be remembered in this case that the real issue concerned the bequest of all the shares in the Commonwealth Bank owned by the deceased at the date of her death. The first Plaintiff would have been entitled to 600 of those shares, which would have fallen into residue, if the March 2012 Will was found to be the last valid Will of the deceased. Ms Kremmer would have been entitled to the other 100 shares. It follows that it is the value of the 600 shares, at the date of hearing, at issue. That value was $48,810. It was this amount that the first Plaintiff had to gain by victory in the proceedings. The Defendant had slightly more to gain. If there is to be a further argument about the costs of the proceedings, undoubtedly, even greater costs will be incurred. Neither party, to date, appears to have seriously considered the object of resolving the issues between them in such a way that the cost to them was proportionate to the importance and complexity of the subject matter in dispute. I have no doubt that the costs of the proceedings will far exceed the amount in issue with the result that it is likely to be a pyrrhic victory at best. The determination of costs should proceed as expeditiously and efficiently as possible. I would encourage the parties to not incur further costs by further argument on that topic. Agreement should, if possible, be reached. However, if they wish to argue about costs, I shall hear the further argument at a mutually convenient time." 6Despite my encouragement, the parties appear to have been unwilling, or unable, to resolve the costs issue without even greater costs being incurred. In this regard, each party provided detailed written submissions, justifying his position in relation to the proceedings. The written submissions delivered by counsel for the Plaintiffs consisted of 5 closely typed pages (comprising 29 numbered paragraphs). The written submissions delivered by counsel for the Defendant consisted of 7 closely typed pages (comprising 35 numbered paragraphs). 7Neither party relied upon any evidence read simply on the costs application. Importantly, neither advanced any evidence that suggested that there had been any reasonable attempt to resolve the costs question without the need for this hearing. (Counsel for the Defendant, however, indicated that, following reasons being delivered, she might wish to tender a Calderbank offer that had been made.) 8The hearing of the costs application occupied about 1 hour of court time. It was shortened, no doubt, because counsel for the Plaintiffs did not appear and because, without any criticism intended, Mr M Hodges, solicitor, who appeared as agent for the Plaintiffs, was unable to speak to, but simply relied upon, the Plaintiffs' written submissions. 9In Luxmore Pty Ltd v Hydedale Pty Ltd [2008] VSCA 212; (2008) 20 VR 481, Maxwell P and Kellam JA said, at [12]: "In the ordinary case, it is both appropriate and desirable that a costs question be decided at the conclusion of argument. Rarely will it be necessary for a judge to give detailed reasons for decision adverting to every matter debated in argument. This court will assume, as should the parties, that every matter addressed in argument on costs has been considered. This court will set its face against any proposition which would require judges disposing of questions of costs to give elaborate reasons." 10I propose to follow the same course. 11It is clear that, at the earlier hearing, there were really two principal issues, the first being whether the May 2012 Will was duly executed in accordance with s 6 of the Succession Act 2006 (NSW) ("the Act") and the second being whether that Will truly reflected the intention of the deceased. 12In relation to the first issue, at [111] of the principal judgment, I wrote: "The issue about due execution raised by the Plaintiffs related to the circumstances surrounding the witnessing, and attestation, by the attesting witnesses, being Mr Chalmers and Ms Knight, of the deceased's signature on the May 2012 Will." 13This required a consideration of two sub-issues, namely whether the signature of the deceased was made or acknowledged by her in the presence of two or more witnesses present at the same time, and whether at least two of those witnesses had attested and signed the May 2012 Will in the presence of the deceased (but not necessarily in the presence of each other). 14As a result of the evidence given by each of Mr Chalmers and Ms Knight regarding whether they had attested and signed the May 2012 Will in the presence of the deceased, it became unnecessary to determine the answer to the first question. I concluded, at [118]: "I am satisfied that, by the last answer, Mr Chalmers meant that he could not see the deceased either at the time that Ms Knight signed, or when he signed, the May 2012 Will. In those circumstances, even if the deceased's signature was made by the deceased in the presence of both Mr Chalmers and Ms Knight who were present at the same time, those two witnesses did not attest and sign the May 2012 Will in the presence of the deceased." 15It was following the evidence of both of Ms Knight and Mr Chalmers that counsel for the Defendant, on the morning of the second day of the hearing, made the concession that the May 2012 Will had not been duly executed. It followed that the Defendant accepted that he could not establish that the May 2012 Will was duly executed in accordance with s 6 of the Act. Accordingly, it was not a valid Will. 16In relation to the second issue, there were also two sub-issues, namely whether the May 2012 Will, if not duly executed, was an informal testamentary document to which s 8 of the Act applied, and whether the deceased knew and approved of its contents. (Part of the latter sub-issue related to what was said to be the doctrine of "suspicious circumstances" and whether there was a breach of retainer and/or a breach of fiduciary duty by the Defendant.) 17On the second issue and each of these sub-issues, the Plaintiffs were unsuccessful. 18Each of the parties submits, upon proper consideration of the evidence, that the other should have determined much earlier than they, or he, did, that they, and he, respectively, would not succeed on the issue that, ultimately, they, and he, did not. Each denies that this submission, as it applies to them, or him, should be accepted. 19The Defendant's counsel, on the issue of due execution, goes so far as to submit that the first time the Defendant learned that the May 2012 Will was not signed by Ms Knight and Mr Chalmers in the presence of the deceased "was during his Honour's cross examination of Ms Knight on day 1 of the hearing". She added, "[t]hat fact was then compounded by Mr Chalmers' evidence to the same effect following cross examination by his Honour, on the afternoon of the first day of the hearing." 20I reject the Defendant's submissions on this topic. In particular, the following matters are to be noted: (a) Ms Knight made an affidavit on 31 January 2014, in which she stated: "I then went inside the house and followed the male person into the kitchen and on the bench he placed a set of documents. Whilst pointing to a signature on a page of the document, he said words to the effect 'Can you witness that signature[?]'". (b) Mr Chalmers, in an affidavit sworn 14 March 2014, stated: "Once I had Sue [the deceased] sign the Will at her chair, I said to Mardi Knight, 'Just come over here to the kitchen bench and we can witness it there.' This is what we did. This would have been approximately 3 metres from where Sue was seated in her chair." (c) The Defendant gave evidence that he had been to the deceased's home. Clearly, Mr Chalmers had been to her home on two occasions as well. (d) It should have been obvious to both, that Mr Chalmers and Ms Knight had signed the document at the kitchen bench, whilst the deceased remained sitting in her chair in another area of the house and that they could not see her, and that she could not see them. 21Bearing in mind the affidavit evidence to which I have referred, a consideration of s 6 of the Act, and the authorities relating to the relevant part of the sub-section, it should have been a matter that the Defendant and his legal representatives investigated and otherwise considered. Had this been done, it would have been obvious that the May 2012 Will had not been duly executed because the two witnesses had not attested and signed the May 2012 Will in the presence of the deceased. 22In relation to the second issue, subject to one matter, the Plaintiffs were entitled to put the Defendant to proof on the principal issue and on the sub-issues. They were entitled to have the Defendant satisfy the court that the May 2012 Will was an informal testamentary document to which s 8 of the Act applied and, also, that the deceased knew and approved the contents of that document. 23The one matter, which I think is important, is the first Plaintiff's evidence, which I identified in [190] of the principal judgment, as follows: "The first Plaintiff does not suggest that the deceased was not alert and appropriate in her level of presentation and understanding. To the contrary, he accepts that she 'knew what she was doing'. Indeed, there is no really no evidence of any indication given by the deceased to Mr Chalmers of any lack of understanding or lack of approval of the contents of the May 2012 Will." 24As stated, on each of the sub-issues connected with knowledge and approval, the Defendant was successful. 25I turn, next, to a brief reference to the written submissions. The written submissions of each of the parties have been carefully considered and a copy of each will remain on the court file. 26The Plaintiffs' counsel, after dealing with the issues to which I have referred, submitted, on how the costs should be borne as follows: "22. It is the Plaintiffs' contention that 60% of the evidence and Court time was dedicated to the issue of lack of due execution. 23. In respect of the Plaintiffs' further amended Statement of Claim, the Plaintiffs say the Defendant should pay 60% of their costs as agreed or assessed (being the proportion of costs incurred on the issue of lack of due execution, in respect of which the Plaintiffs were successful) and the Plaintiffs should not be required to pay any of the Defendant's costs. 24. As to the causes of action pleaded by the Plaintiffs in respect of breach of fiduciary duty and breach of retainer, the evidence in support of those claims was essentially the same evidence as was adduced on the issue of knowledge and approval. Very little Court time or evidence was dedicated to the two ancillary causes of action and no specific costs order should be made in respect of them. 25. Further, your Honour dismissed the Defendant's Cross-Claim in its entirety. Any costs incurred by the Plaintiffs/Cross-Defendants in respect of the Cross-Claim and Cross-Defence should be paid by the Defendant/Cross-Claimant. In the alternative 26. If the Court does not accept that the costs of proving knowledge and approval should be borne entirely by the Defendant, as contended above, then: 26.1. the Plaintiffs were entirely successful on the issue of lack of due execution and the Defendant should pay their costs on that issue. 26.2. the Defendant was successful on the issue of knowledge and approval and the Plaintiffs could not resist an order to pay the Defendant's costs on that issue. 27. However, as submitted above, the Plaintiffs say that the majority of the time and evidence at hearing went to the issue of lack of due execution. 28. In respect of the Plaintiffs' further amended Statement of Claim, the Plaintiffs say the Defendant should, therefore, be required to pay 60% of their costs and the Plaintiffs should pay 40% of the Defendant's costs, as agreed or assessed. 29. Further, your Honour dismissed the Defendant's Cross-Claim in its entirety. Any costs incurred by the Plaintiffs/Cross-Defendants in respect of the Cross-Claim and Cross-Defence should be paid by the Defendant/Cross-Claimant." 27(I have earlier referred to the amendment of the orders regarding the Cross-Claim.) 28The Defendant's counsel, after dealing with the issues to which I have referred, submitted: "18. The Plaintiffs failed on four of the five bases on which the challenge to the May 2012 Will was made. Arguably, they 'won' the s 6 point, but not on the pleaded basis. That 'victory' is hollow however, given it was inevitable, in light of the matters within Ian Smith's personal knowledge prior to the commencement of the proceedings on 17 July 2013 (given his complaint to the Queensland Law Society about Mr Chalmers whereby he stated he thought the deceased knew what she was doing when she made her Will) that the deceased intended the document to form her Will and that, properly advised, s 8 could save the document. This point was stronger by the fact that testamentary capacity was not in issue a month before the hearing. The s 8 point should have been conceded by the Plaintiffs earlier, at the latest, 1 month before the hearing when they abandoned testamentary capacity. ... 25. The Plaintiffs pressed on with the litigation despite either having no evidence to support their contentions or, their own evidence supporting the Defendant's contentions, or, not challenging the Defendant's evidence. The Plaintiffs ought to have abandoned the proceedings or at least abandoned the points that were not maintainable as soon as it became obvious that the points could not be maintained. To the contrary the Plaintiffs' counsel pressed on with her submissions on at least 3 of the 4 unmaintainable points to the end of the hearing despite there being insufficient evidence to support the arguments. Some concession, albeit reluctantly, was made at the end of day 1 about the application of s 8. ... 31. The Plaintiffs should be ordered to pay the costs of the Defendant/cross claimant on the ordinary basis. 32. The conduct was brought about by the Plaintiffs (in particular, the first Plaintiff). Probate litigation, being public interest litigation, made it impossible for the defendant to attempt to settle with the Plaintiffs - the validity of the will was in dispute and it was an 'all or nothing' situation - either the whole will failed (not just the specific bequest to the defendant which could have been pleaded but was not) or it stood. 33. In the alternative, the Defendant/cross claim[ant] submits the Plaintiffs should pay the Defendant's costs of the proceedings less a reduction of 30% in favour of the Plaintiffs for 'winning' the s6 point. 34. Alternatively, the Defendant submits the Plaintiffs should pay the Defendant/cross claimant's costs and each party should bear their own costs on the s 6 point. This is because neither party led evidence in chief from either attesting witness that the Will was not signed by them in the presence of the deceased. The fact the Will was not properly executed was not the fault of the Defendant, who was not responsible for its execution. Any order that the Defendant should pay the Plaintiffs' costs of the s 6 point would not be appropriate in the circumstances. 35. Any order that the parties should bear their own costs of the proceedings is also inappropriate as it would, in effect, have the consequence of giving the Plaintiffs the outcome they wished to achieve in proceedings which were, to some extent, commenced and maintained for an ulterior purpose. That is, the Defendant will, in all likelihood, be required to sell the shares to pay his costs, thereby depriving him of the benefit intended for him by the deceased. In this sense, it might be said the deceased caused the litigation, by gifting the shares to him and exposing him to attack by the Plaintiffs. The Defendant should not have to personally pay for that." 29So far as I can discern, the parties did not seem to be in dispute on the statutory framework and the principles that apply in relation to determining how the burden of costs is to be borne. In case I am wrong, I shall briefly set out the relevant legislation and the general principles that apply. 30The 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 is broad but not unconfined. It is a judicial discretion to be exercised on a principled basis. 31Section 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." 32Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 42.1, provides that costs should 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. UCPR, r 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. 33The rules reflect the general proposition that an award of costs is discretionary, but that, generally, the discretion is exercised in favour of the successful party: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52, at [25]. 34If costs are ordered to be paid, the usual order is that those costs are calculated on the ordinary basis (UCPR, r 42.2). Indemnity costs may be ordered in certain circumstances, including when a costs order for assessment on the ordinary basis is insufficient in the circumstances to compensate for costs unreasonably incurred due to the misconduct of the other party, which misconduct, for example, causes the prolongation of the proceedings or the making of allegations which ought never to have been made. 35It is clear that the discretion to award costs is "absolute and unfettered" (Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 per Dawson J, at [26]). However, the discretion must be exercised judicially, that is, according to relevant considerations, and taking account of the contextual features and facts of the litigation. 36The 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, per Gleeson CJ (as his Honour then was). 37As 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 recognises 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]." 38Ultimately, the Civil Procedure Act and the UCPR require the court to make such costs order as it thinks just and reasonable in the particular circumstances of the case: Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343, at [10]. 39Black 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.'" 40In the present case, because there were claims brought by each of the parties, it is necessary to refer to an additional principle, being that, unless a particular issue is clearly dominant or separable, it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those in which he, or she, failed: Waters v PC Henderson (Aust) Pty Ltd [1994] NSWCA 338; (1994) 254 ALR 328. 41In Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256, at [107], Campbell JA, after referring to Waters v PC Henderson (Aust) Pty Ltd, added: "In the application of that principle, an issue or group of issues is 'clearly dominant' when it is clearly dominant in the proceedings as a whole." 42More recently, in Coshott v Barry [2014] NSWSC 238, Adams J, at [8], wrote: "A successful party will usually be entitled to costs, although it may be sometimes appropriate to make an adjustment as to the extent of that entitlement if, although the result favoured the party, issues were raised in the proceedings as to which the other party was successful. However, differentiation between issues on which the party ultimately successful failed will generally not be attempted unless a particular issue or group of issues is clearly dominant or separable. Ordinarily, costs of the proceedings should be awarded to the successful party without attempting such a differentiation. Even where such differentiation is appropriate, variation of the usual order as to costs will rarely be made if the matters in respect of which the ultimately successful party failed did not take up a significant part of the trial, either by way of evidence or argument. This is a matter of fact and degree, as to which the Court has a wide discretion: Elite Protective Personnel Pty Ltd & Anor v Thomas Salmon (No 2) [2007] NSWCA 373 at [6] - [11]; Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]." 43The Court may make no order as to costs in the case of a mixed result: Doppstadt Australia Pty Ltd v Lovick & Son Development Pty Ltd (No 2) [2014] NSWCA 219, per Ward, Emmett and Gleeson JJA. 44In this case, whilst there was a differentiation of issues, the substratum of facts was, essentially, the same. It would be undesirable, in my view, to make costs orders expressed in terms of specific issues, although, of course, I have taken the success, or failure, on particular issues into account in determining how the discretion should be exercised. In this regard, I also remember s 56 of the Civil Procedure Act. In all the circumstances, I consider it appropriate to reach an overall view as to what is a just and proper costs order. 45Because these were Probate proceedings, a number of other principles may also be relevant. I have dealt with a number of these principles in de Angelis v Laundy [2014] NSWSC 456. At [56], I referred to what is a relevant and, in my view, apt, principle in Middlebrook v Middlebrook & Anor (1962-1963) 36 ALJR 216, in which case, Dixon CJ wrote, at 217: "No doubt in probate suits the prima facie rule is that, as in other litigation, costs follow the event. But in probate suits there are considerations which more readily affect the application of this rule than in most other forms of litigation. See Re Keane [1909] VLR 231, at p 239. An examination by Hood J of the more important English cases decided up to the date of his judgment will be found in Re Millar [1908] VLR 682. There are in the present case circumstances which would naturally lead the caveator to think that an investigation of the validity of his father's last will was justified. If this case were judged on its general circumstances only, I think that adequate reasons would be seen for entertaining some doubt as to the validity of the will. It is only as a result of investigation that the reasons for finding affirmatively in favour of the testator's testamentary capacity distinctly appear. In these circumstances the proper course is to apply the principle enunciated by Sir Gorrell Barnes P. that 'if the circumstances lead reasonably to an investigation of the matter then the costs may be left to be borne by those who have incurred them'." 46Neither party in the current proceedings referred to the principle in Nock v Austin [1918] HCA 73; (1918) 25 CLR 519, in which Isaacs J observed, at 529: "... where a party having created suspicion in relation to a will under which he benefits is under the burden of clearing away that suspicion, then, as justice requires him to do so in the presence of any person interested should the suspicion be justified, he must, though eventually successful, ordinarily pay the costs of the person whose presence he has made necessary so far as his benefit extends." 47In this case, in my view, whilst I cannot say that the Defendant, himself, created suspicion in relation to the May 2012 Will, there were circumstances which could naturally have led the Plaintiffs to think that an investigation of the validity of the May 2012 Will was justified. In this regard, I have referred earlier to the issue of due execution upon which the Plaintiffs were successful. 48On the issue of knowledge and approval, I noted, at [201] of the principal judgment, that, in determining whether there was knowledge and approval, the court engages in an holistic exercise based on the evaluation of all of the evidence and that, even if one started with initial suspicions, including that the Defendant, who was the solicitor for, and Attorney of, the deceased, received a benefit under the May 2012 Will, without the deceased, who was of advanced age, having been medically examined, in circumstances where the May 2012 Will was not duly executed, and where Mr Chalmers, the solicitor who took instructions, was well known to, and a close friend of, the Defendant, having read and heard all of the evidence, including the evidence of the first Plaintiff, and after subjecting the evidence of the Defendant and Mr Chalmers (in particular), to a vigilant and jealous examination, all of the suspicions had been dispelled to my satisfaction. 49In this regard, the Defendant was successful. 50However, I also remember that Probate litigation is not entirely between parties, because they did not make the Will the subject of dispute and the court is required to determine whether a document of the deceased is a valid testamentary instrument. There is a public interest in ensuring that the matter is properly proved. 51Taking into account all of the matters going to how the burden of costs of the proceedings should be borne, and in the exercise of my discretion, I consider that there should be no order for costs of either party in the proceedings and that each party should bear their, and his, own costs of the proceedings, respectively. In this regard, the Plaintiffs were unsuccessful except on the issue of due execution. The Defendant was required to satisfy the court that the May 2012 Will was a valid testamentary instrument, the contents of which the deceased knew and approved. In my view, the justice of the case requires such an order to be made. 52Accordingly, I make no order as to costs of either party to the intent that each party is to bear their, or his, own costs of the proceedings. 53Although counsel for the Defendant raised the possibility of a Calderbank offer being relevant, after these reasons were delivered, she did not seek to tender any offer, or submit that any offer might have relevance to the application for costs. In the circumstances, the order previously made extends to the costs of the application for costs.