New South Wales Supreme Court CITATION : Durham v Durham [2010] NSWSC 482 HEARING DATE(S) : 29 April 2010, 17 May 2010 JUDGMENT OF : Ball J EX TEMPORE JUDGMENT DATE : 17 May 2010 DECISION : Each party to pay own costs with Defendants' costs to be paid out of Estate on an indemnity basis. CATCHWORDS : COSTS - Family Provision Cases - Unsuccessful plaintiff - borderline case - no order for costs against plaintiff LEGISLATION CITED : Family Provision Act 1982 CATEGORY : Procedural and other rulings CASES CITED : Carey v Robson [2009] NSWSC 1199 PARTIES : Peter Robert Durham (Plaintiff) Bruce Albert Durham (Defendant) FILE NUMBER(S) : SC 2009/289688 COUNSEL : Mrs M Bridger (Plaintiff) J E Armfield (Defendant) SOLICITORS : Williams Woolf & Zuur (Plaintiff) Burridge & Legg (Third Defendant) - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BALL J 17 MAY 2010 2009/289688 PETER ROBERT DURHAM v BRUCE ALBERT DURHAM EX TEMPORE JUDGMENT 1 HIS HONOUR: In this matter I found that the plaintiff's claim should fail for two reasons. The first was that I found that the plaintiff was not entitled to an extension of time in which to bring his claim. Secondly, I found that, even if the plaintiff had been entitled to an extension of time, his claim would fail because he had not established that inadequate provision had been made for him out of the estate. Nonetheless, I went on to indicate that the order I proposed to make in relation to costs was that both parties' costs should be payable on an indemnity basis out of the testator's estate. However, I invited either party to make an application for a different order if they thought that was appropriate. 2 The defendants took up that invitation. They say that the appropriate order in this case is that the plaintiff should pay the defendants' costs on a party/party basis. In support of that submission they referred to the decision of Palmer J in Carey v Robson [2009] NSWSC 1199. 3 In indicating my proposed costs order I had in mind a number of features about this case. 4 The first was that I did not think that the plaintiff's case was without merit. I thought, rather, that this was a borderline case. 5 Secondly, although I was not ultimately prepared to grant an extension of time in this case, there was an unusual feature in relation to that application. The defendants appeared to accept that if an application had been brought within time the likelihood is that the testator's wife would have made an application and her application would have succeeded and the plaintiff's application would have failed. One consequence of that would have been that the plaintiff in these proceedings ultimately would have inherited the whole estate because the testator's wife chose in her will to leave the whole of her estate to him, no doubt having regard to the services that the plaintiff had provided both to her and the testator. 6 A third feature of this case is that it seems to me clear from what the testator has done that he wanted to treat his children equally even though the plaintiff, certainly on one view of the facts, had provided considerably more assistance to him than his other children. Consistently with that equal treatment it seemed to me unfair that the plaintiff should suffer the consequences of a full costs order where it might be said that his conduct in bringing these proceedings should be balanced in an overall sense against the services that he had previously provided to the testator. The fact that he brought a claim that had some merit but failed should not displace the principle of equal treatment. 7 Fourthly, I was conscious that a number of the other beneficiaries had, when cross-examined on the point, indicated that they were willing to contemplate the plaintiff buying the property which was the principal asset of the estate and that they were willing to allow that to happen not at top dollar but at a price which was likely to provide what assistance they could to the plaintiff. 8 Having said all that, I accept the defendants' submission that the order I proposed falls outside what would normally be regarded as a reasonable exercise of discretion in relation to costs in Family Provision Act matters in this Division, particularly having regard to the comments made by Palmer J in Carey v Robson [2009] NSWSC 1199. 9 I think in those circumstances the costs order that I should make is that each party bear his or their own costs with the intention, of course, that the costs of the defendants will be paid out of the estate on an indemnity basis. I make that order. ********** 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.