New South Wales Supreme Court CITATION : Anne Stephanie Wright -v- Public Trustee [2007] NSWSC 1069 HEARING DATE(S) : 29 August 2007 JUDGMENT OF : Associate Justice McLaughlin EX TEMPORE JUDGMENT DATE : 29 August 2007 DECISION : 1. I order that Order 2 made by me on 15 August 2007 be emended by inserting after the words "party and party basis" the words "in an amount not exceeding $50,000". CATCHWORDS : Succession. Family Provision. Costs. Proportionality. Capping of costs. Testator's Family Maintenance and Guardianship of Infants Act 1916 LEGISLATION CITED : Family Provision Act 1982 Civil Procedure Act 2005 Carrol v Cowburn [2003] NSWSC 248 Deves v Porter [2003] NSWSC 878 Foster v Lisle [2003] NSWSC 1243 CASES CITED : Moore v Moore [2004] NSWSC 587 Sherborne Estate (No 2) Vanvalen v Neaves [2005] NSWSC 1003 Ta v Ta [2007] NSWSC 773 Dalton v Paull [2007] NSWSC 803 PARTIES : Anne Stephanie Wright (Plaintiff) Public Trustee (Defendant) FILE NUMBER(S) : SC 1955 of 2006 COUNSEL : Mr S. Benson (Plaintiff) Mr L. Ellison SC (Defendant) SOLICITORS : Downie & Co (Plaintiff) Antony John Sutton, Solicitor for the Public Trustee (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ASSOCIATE JUSTICE McLAUGHLIN Wednesday, 29 August 2007 1955 of 2006 ANNE STEPHANIE WRIGHT –v- PUBLIC TRUSTEE JUDGMENT 1 HIS HONOUR: I published my reasons for judgment in this matter on 15 August 2007. My orders were, substantively, that the plaintiff, in addition to the legacy of $10,000 given to her by the will of the deceased, should receive a further legacy in the sum of $50,000. In respect to the costs of the proceedings I ordered that the costs of the plaintiff on the party and party basis and the costs of the defendant on the indemnity basis be paid out of the estate of the deceased. The defendant has now made an application for an order capping the costs of the plaintiff at a maximum amount of $50,000. 2 In my reasons for judgment I recorded that it was estimated on behalf of the plaintiff that her costs would total about $57,184. That estimation was based upon a hearing occupying no more than one day. In the event, the hearing extended over three days, although the hearing occupied only one and half hours on the second day and only half a day on the third day. I, therefore, expressed the view that it was prudent to assume that the costs of the plaintiff would total at least $70,000. 3 However, it should be emphasised that it was the estimation of the solicitor for the plaintiff that a hearing occupying no more than one day would have attracted costs of about $57,184. That amount is more than the amount which the plaintiff received in consequence of the bringing of the present proceedings. She had, as I have already recorded, received under the will of the deceased a legacy of $10,000. In consequence of the institution by her of the present proceedings she was awarded an additional amount of $50,000. 4 In support of the present application I have been taken by senior counsel for the defendant to the provisions of s 60 of the Civil Procedure Act 2005 which provides: In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute. 5 I have also been taken to the provisions of section 98 of that statute, which confers upon the Court ample power to make an order of the nature which is presently sought by the defendant. 6 The defendant has also taken me to a number of decisions of judges in this Division concerning what might be described as applications for the capping of costs. Those decisions include the following: Carrol v Cowburn [2003] NSWSC 248, a decision of Young CJ in Eq (4 April 2003); Foster v Lisle [2003] NSWSC 1243, also a decision of Young CJ in Eq(17 December 2003); Moore v Moore [2004] NSWSC 587, yet another decision of Young CJ in Eq (30 June 2004); Ta v Ta [2007] NSWSC 773, also a decision of Young CJ in Eq (2 July 2007); Deves v Porter [2003] NSWSC 878, a decision of Campbell J (23 September 2003) and the very recent decision of Macready AsJ in Dalton v Paull [2007] NSWSC 803, (24 July 2007). 7 I have also had the benefit of receiving a written outline of submissions from counsel for the plaintiff, which will be retained in the Court file. 8 Counsel for the plaintiff has also taken me to the decision of Palmer J in Sherborne Estate (No 2) Vanvalen v Neaves [2005] NSWSC 1003 (10 October 2005). 9 The plaintiff, in counsel's written submissions, very properly refers to the fact that the power of the Court should not be used for the purpose of punishing a successful party to the litigation by making an order capping costs. 10 Each case is grounded upon its own facts, and, except in the most general sense, it is undesirable to lay down any rules which should be applied to all cases. Nevertheless, the Court is required by the provisions of section 60 of the Act to recognise the principle of proportionality of costs. By any standards, in a case in which the original estimated length of hearing was one day and the costs for the plaintiff were estimated for that one day hearing to total in excess of $57,000, and the plaintiff was awarded only $50,000 as a result of the litigation, there seems to me to be a lack of proportionality between the amount of the plaintiff's costs and the outcome to the plaintiff. 11 This was by no means a complex case. It was a very simple case. The plaintiff, however, pitched her claim very high. She sought to obtain by way of an order from the Court an amount sufficient to enable her, first, to acquire a house property, and, second, to give financial assistance to her children. Both of those aims were, indeed, commendable, as I observed in my reasons for judgment. But neither constituted any need on the part of the plaintiff. 12 The estrangement of the plaintiff from the deceased was attempted to be explained by the plaintiff in a most unconvincing fashion. However, the deceased himself did not regard that estrangement as constituting a reason for totally ignoring any claim which the plaintiff might have had upon his testamentary bounty. Had the deceased totally omitted the plaintiff from the terms of his will it may well have been that that attitude on the part of the deceased would have supported a conclusion that the plaintiff had been guilty of what in former times, in claims under the Testator's Family Maintenance and Guardianship of Infants Act 1916 was usually referred to as conduct disentitling. However, as the deceased himself recognised the plaintiff to have some claim, albeit small, upon his testamentary bounty I was not persuaded that the estrangement constituted conduct on the part of the plaintiff which would have justified the Court in rejecting the plaintiff's claim. 13 The plaintiff received from the Court a benefit which was small in comparison to that which she had claimed. She should not be punished on that account. Nevertheless, it seems to me that this is an appropriate case where she should not be entitled to receive out of the estate costs in an amount which exceeds the amount awarded to her by the Court. 14 Accordingly, I propose to make an order of the nature sought by the defendant capping the costs of the plaintiff at $50,000 and I will proceed to formulate my order. 1. I order that Order 2 made by me on 15 August 2007 be emended by inserting after the words "party and party basis" the words "in an amount not exceeding $50,000". ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.