BROWN v AKERMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, CLARKE and SHELLER JJA 22 May 1995, 22 May 1995 [1995] NSWCA 60 COSTS — probate — unsuccessful challenge by relatives — whether judge failed to consider reasonableness of enquiry — held: Should have been raised before orders perfected — summons dismissed. WILLS, PROBATE AND ADMINISTRATION — probate — costs applicable principles — Re Eger, unreported, 4 February 1985 consd. COSTS — probate suit — contested will — relatives contest will leaving property to charity — primary judge (Young J) dismisses suit — orders relatives to pay executor's costs — summons for leave to appeal against cost order only — held: (Dismissing the summons): (1) The requirement of leave to appeal against cost orders only is designed to uphold the primacy of the trial judge and that judge's knowledge of the detail of the case as well as to protect the Court of Appeal against unnecessary appeals on such matters; (2) Assuming that a consideration relevant to the exercise of the costs discretion is that, ordinarily, where the investigation of the document propounded as the will is reasonable the costs of an investigation shall be borne as they fall. In the present case no application was made to the primary judge to reconsider his order as, had it been made, evidence might have been called which was not available to the Court of Appeal, the case was not one suitable for the grant of leave; (3) Leave refused. WILLS, PROBATE AND ADMINISTRATION — contested will — contest dismissed — costs order — applicable principles — whether testator was cause of litigation — whether it was reasonable to investigate the validity of the will — whether the primary judge (Young J) failed to take into consideration the reasonableness of the investigation of the validity of the will — held: Even assuming that the primary judge failed to consider this matter, the proper time to raise the point was before the perfection of the orders at the trial. Leave to appeal refused. Re Eger, unreported, Supreme Court of NSW (Powell J), 4 February 1985 considered. Supreme Court Act 1970, s101(2)(c). Kirby P The Court has before it an application for leave to appeal from a costs order which Young J made in disposing of a challenge to a will of the late Owen Arthur Crooks. The challenge failed. There is no appeal against that determination. However, when his Honour disposed of the costs of the challenge he said: "In some probate suits it could be seen the conduct of the testator was a cause of the problem which has arisen. This is the not situation in the present case. Accordingly, I see no reason why the ordinary rule should be displaced." His Honour, therefore, ordered that the challengers, who represent members of the family of the deceased testator, pay the costs of the proceedings in the Division. The claimants seek leave to appeal from that order. Their challenge is substantially to the point that it has been established, in a number of cases, that the principles which ordinarily govern the exercise of a discretion to order costs 2 UNREPORTED JUDGMENTS in the circumstances that occurred here have typically been twofold. First, where the testator has, or those interested in the residue have, been the effective cause of the litigation, the costs of those unsuccessfully opposing the grant of probate may be ordered out of the estate. Secondly, if the circumstances led reasonably to an investigation in regard to the document propounded as the deceased's last will, the costs may be left to be borne by those who respectively incurred them. See eg Re Eger, unreported decision of Powell J of 4 February 1985. I shall assume, for the moment, that those two categories state proper considerations. I would not wish it to be thought that they are exhaustive of the considerations which may be taken into account in disposing of costs in cases involving contested wills. Costs orders are quintessentially discretionary in character. They are committed by law to the Judges of trial. They will typically know so much more about the case than this Court usually does, at least at this stage, on an application such as the present. The Supreme Court Act 1970 requires leave to appeal where the proposed appeal is against costs orders only. See the Act, s101(2)(c). This requirement is established by Parliament out of respect for the primary Judge's knowledge and understanding of the case, the disputability of costs orders and for the defence of the press of business of this Court. The objection argued by the claimants in this case is that his Honour, in disposing of costs as he did, did not give sufficient consideration, or consideration at all, to the second of the two criteria which have been mentioned. It is true that his Honour does not specifically refer to the stated consideration. I myself have some anxiety as to whether his Honour did address his attention to the application of the second suggested principle. However, a number of reasons have led me to the conclusion that this Court should not grant leave. The first is that, as the Court has been informed, the point was never raised in argument at the trial. Secondly, even after the judgment was handed down, no application was made to his Honour to alter his unperfected orders before they became the orders of the Court. It would then have been open to his Honour to have reconsidered his order and to have changed it. Thirdly, if such an application had been then made, it might well have been open to the parties, particularly the opponent, to have called further evidence touching on the point, which could have affected the reconsideration of the exercise of the costs discretion. Fourthly, by reason of the way the matter was conducted at first instance, his Honour did not address his attention to the issue. In effect, the claimants would be asking this Court to do so in the Court of Appeal for the first time. That, I am afraid, is not an efficient use of the scarce resources of the Supreme Court. The Act stands against it. The caution of this Court, in reviewing discretionary costs decisions, stands against it. Despite the extremely diligent work which counsel for the claimants have performed in the endeavour to persuade the Court that an injustice has occurred and an error of principle has taken place, I am of the view that this is not a proper case for leave. I would propose that the summons be dismissed with costs. Clarke JA I agree. Sheller JA I also agree. Kirby P: Such is the order of the Court. Summons dismissed with costs. Counsel for the Claimants: CR Einstein QC/DG Stewart URJ BROWN v AKERMAN (Sheller JA) Solicitors for the Claimants: Gadens Ridgeway Counsel for the Opponent: JS Drummond Solicitors for the Opponent: Gilbert and Tobin