In civil litigation it is the general position that costs follow
the event which means that the losing party will pay the winning
party's costs. In fact, Order 66 Rule 1 of the Rules of the
Supreme Court 1971 (WA) states that the Court will generally
order that the successful party to any action or matter shall
recover their costs.
This general position is not always applicable to proceedings
commenced under the Family Provision Act 1972 (WA) (the
FP Act). Section 14(6) of the FP Act provides that
the Court may make "such order as to the costs of any
proceedings under this [FP] Act as it deems just".
On 21 August 2014 Sadie Craig made an application to the Court
seeking an extension of time to file her application for an order
that adequate provision be made out of her late husband's
estate. This application was made just over five weeks after the
six month period had expired under the FP Act. His Honour Justice
Mitchell dismissed Mrs Craig's application for leave to file
out of time on 24 March 2015 (
Craig v Craig  WASC 109).
The defendants to those proceedings were the Executor and three
beneficiaries of the late Mr Craig's Will. More importantly,
there was a solicitor and counsel acting for the first defendant
(Executor) and a separate solicitor acting for the second, third
and fourth defendants.
Mrs Craig to pay the Executor's costs of the application as
between party and party.
The costs of the Executor be taxed on a trustee basis and, to
the extent that those costs exceed the costs borne and paid by Mrs
Craig as between party and party, be paid out of the estate.
In exercising His discretion in respect of the costs of the
proceedings, Mitchell J had regard to the circumstances of the case
and set out the following factors which led him to the view that
Mrs Craig should pay at least some portion of the defendants'
costs of the application:
It was significant that in his judgment on 24 March 2015 Mrs
Craig did not have an arguable case and that if properly advised,
Mrs Craig should have appreciated that her proposed application
under the FP Act had no reasonable prospect of success.
Mrs Craig was a person of considerable personal wealth (over $2
million) who had the capacity to meet a costs order.
Mrs Craig had sought an indulgence of the Court where she had
failed to comply with the time limits prescribed by the FP
In saying that, Mitchell J found the following factors counted
against an order requiring Mrs Craig to pay the whole of the
Mrs Craig was successful on the issue of whether leave should
be granted if she had an arguable case.
There was considerable duplication in the arguments by the
lawyer representing the Executor and the lawyer representing the
second, third and fourth defendants. Notably, Mrs Craig should not
be required to pay two sets of legal costs where the argument
presented by the two sets of lawyers was essentially the same.
In negotiations between the parties the second, third and
fourth defendants unreasonably required Mrs Craig to surrender at
least some control of her choice of a retirement facility.
Having regard to the above factors, Mitchell J made the orders
above as, in His view, those were fair cost orders in all of the
circumstances. In effect, the orders were designed to burden Mrs
Craig with paying the complete costs of one party defending the
If you are considering making an application under the
Family Provision Act 1972 (WA), ensure you receive advice
in respect of the cost orders which could eventuate from that
application. For a general summary on the time limits for making a
claim on an estate, please refer to our
October Legal Update.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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