McGrath & Anor v Eves & Anor (No 2) [2005] NSWSC 1077

New South Wales Supreme Court

CITATION : McGrath & Anor v Eves & Anor (No 2) [2005] NSWSC 1077

HEARING DATE(S) : 17/10/05

JUDGMENT DATE : 17 October 2005

JUDGMENT OF : Gzell J

DECISION : No order as to costs of the widow.

CATCHWORDS : PROCEDURE - Costs - Whether widow residuary beneficiary in application by children of the deceased under the Family Provision Act 1982 should have an order for costs out of the estate - Executor represented and seeking to uphold the will - Draft orders containing costs order in her favour agreed in by other parties

Civil Procedure Act 2005 LEGISLATION CITED : Uniform Civil Procedure Rules 2005 Family Provision Act 1982

Re Burton, deceased (1958) QWN 27 CASES CITED : Re Wieland, deceased (1960) Qd R 585

Dennis kelvin McGrath - 1st Plaintiff Diane Maree Murrya - 2nd Plaintiff PARTIES : Terry Louis Eves - 1st Defendant Mune McGrath 2nd Defendant

FILE NUMBER(S) : SC 1748/02

Coffey: 1st Plaintiff Smith: 2nd Plaintiff SOLICITORS : Ms McNee: 1st Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

MONDAY 17 OCTOBER 2005

1748/02 DENNIS KELVIN McGRATH & ORS V TERRY LOUIS EVES & ANOR (N0 2) EX TEMPORE JUDGMENT 1 Notwithstanding the agreement of the parties, I decline to make an order for costs in favour of the second defendant, June McGrath, the widow of the deceased. 2 The Civil Procedure Act 2005, s 98(1)(a) provides that, subject to the Rules and any Act, costs are in the discretion of the court. The Uniform Civil Procedure Rules 2005, r 42.1 provides that costs follow the event unless it appears to the court that some other order should be made. 3 The Family Provision Act 1982, s 33(3) provides that the court is not to order costs out of the estate by reason only of the fact that an applicant is a child of the deceased or that an order is made in favour of that applicant. But by reason of the straightened circumstances of Mr McGrath and Mrs Murray, the children of the deceased, in addition to their success on their applications it is, in my view, appropriate to order that their costs be paid out of the estate. 4 So far as Mrs McGrath is concerned, the question whether she should have her costs paid from the estate is academic because she is the residuary beneficiary and the residue is sufficient to pay the increased legacies and the costs of all parties who appeared in the litigation. 5 Mr Eves, the son of Mrs McGrath, was one of the executors. He was the person who sought to uphold the will. He should have his costs paid out of the estate. 6 In Re Burton, deceased (1958) QWN 27 a widow sought further provision from an estate. She was an executrix. Her co-executor was represented by counsel in that capacity and by other counsel in his capacity as a beneficiary in the estate. Mansfield CJ held that where both counsel sought to uphold the will it was not appropriate for two sets of costs to be ordered out of the estate. Because the point was a novel one and the estate was large, he allowed the costs of the second representation. 7 Re Burton was overruled on another point in Re Wieland, deceased (1960) Qd R 585. I endorse the general proposition of the Chief Justice and decline to make any order with respect to the costs of Mrs McGrath. 8 I make orders in the terms of the short minutes of orders agreed in by the parties as amended by me to delete the order for costs in favour of Mrs McGrath. I grant Mrs McGrath leave to move to vary these orders, such application to be made by no later than 4.00 pm on Wednesday, 19 October 2005.