Wardle v Wardle (No. 2) [2021] NSWSC 1663

Supreme Court New South Wales

Medium Neutral Citation: Wardle v Wardle (No. 2) [2021] NSWSC 1663 Hearing dates: 17 December 2021 Date of orders: 20 December 2021 Decision date: 20 December 2021 Jurisdiction: Equity Before: Slattery J Decision: Plaintiff's costs capped at $120,000. Defendant's costs not capped. Plaintiff awarded almost two-thirds of his costs, being $75,000. Defendant's solicitor not able to recover costs more than $80,000 inclusive of counsel's fees and other disbursements, pending the outcome of any investigation by the NSW Law Society into the matters referred by the Court. Catchwords: COSTS – Family Provision – Costs-capping – competing claims by two adult children for further provision out of the estate of their deceased mother – where the plaintiff had success in the proceedings in claiming on behalf of the estate an interest in property in the name of the defendant and was given further provision out of the estate with a legacy of $75,000 – where the deceased's estate is minimal, as a result of the conveyance of her principal asset to the defendant in which the defendant was living – whether it is appropriate for the Court to make costs-capping orders – when such an order may be made. COSTS – Party/Party – Payable out of fund – Deceased estate – where the deceased's estate is minimal – consideration of who is to bear costs – plaintiff successful on behalf of the estate but the defendant had a strong family provision claim – balancing the Court's need to recognise the plaintiff's success in the aspect of the case that took more than half the time in the proceedings, namely setting aside the property transfer to the defendant and the defendant's otherwise strong family provision case – whether or not the defendant's solicitor should recover costs more than a specified amount pending the outcome of any investigation by the Law Society into the matters referred by the Court in the first judgment. Legislation Cited: Civil Procedure Act 2005, ss 98(4)(c), 100 Probate and Administration Act 1898 Cases Cited: Cooper v Atkin [2020] NSWSC 828 Olsen v James [2020] NSWSC 1015 Permanent Trustee Co v Redman (1917) 17 SR (NSW) 353 Poche v Poche [2020] NSWSC 835 Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe (No. 3) [2018] NSWSC 60 Texts Cited: Supreme Court Family Provision Practice Note No. SC EQ 7, clause 24 Category: Costs Parties: Plaintiff: Roderick William Wardle Defendant: Sharon Patricia Wardle Representation: Counsel: Plaintiff: H. Morrison Defendant: A. Blank