Bushell v George (No 2)

1. [1]

   I delivered my judgment in these proceedings on 17 November 2025: Bushell v George [2025] NSWSC 1347 (J). These are my reasons in relation to the question of costs. They should be read in the light of my judgment. I will use the same naming conventions used in my judgment.

2. [2]

   The proceedings were brought by two plaintiffs, James and Hannah, who are brother and sister. Each brought a claim in proprietary estoppel and a claim for further provision under the Succession Act 2006 (NSW) against the estate of their late father, Wayne.

3. [3]

   James was wholly unsuccessful in his claims. Hannah was unsuccessful in her proprietary estoppel case but succeeded in her claim under the Succession Act. I determined that she should have further provision in the sum of $300,000 in addition to her legacy under the will. Orders giving effect to that determination were made by consent.

4. [4]

   The parties are now in dispute as to where, in these circumstances, the burden of costs should lie.

The parties’ positions on costs

1. [5]

   The plaintiffs submit that costs should be ordered as follows:

   1. (1)

      James ought to pay 25% of the defendants’ costs of the proceedings.

   2. (2)

      The defendants ought to pay 50% of Hannah’s costs.

2. [6]

   The defendants submit that the plaintiffs should be ordered to pay the defendants’ costs of the proceedings. Alternatively, if there is to be any apportionment at all (which they deny), they submit that an appropriate apportionment would be as follows:

   1. (1)

      James ought to pay the whole of the defendants’ costs of the proceedings.

   2. (2)

      Hannah ought to pay 90% of the defendants’ costs of the proceedings.

3. [7]

   All of the proposed orders are as to costs on the ordinary basis. Although there is evidence of some without prejudice settlement communications, neither party seeks any special costs order on the basis of the other’s failure to accept an offer.

4. [8]

   The parties’ positions are highly divergent. The plaintiffs’ position would see the defendants recover only one quarter of their costs of the proceedings (from James) and, in addition, be required to pay half of Hannah’s costs. The defendants’ position would see them recover the entirety of their costs even if there was to be some apportionment in relation to Hannah, which they oppose in any event.

5. [9]

   The rationales for these positions were said to be as follows.

6. [10]

   The plaintiffs submit that their claims were distinct. They submit that the scope and volume of evidence and the amount of time devoted at the hearing to James’s claims was broadly the same as that in relation to Hannah’s claims. The starting point, they say, is that James should only be liable for half of the defendants’ costs.

7. [11]

   Further, James submits that to the extent his claim was based on the Succession Act, this should be treated as a clearly separable claim to which different principles apply as to costs. In this respect, he says it is appropriate to have regard to the well-known statement of Gaudron J in Singer v Berghouse [1993] HCA 35; (1993) 67 ALJR 708 at 709 where her Honour said:

8. [12]

   In that regard, James submits that the principal reason his Succession Act claim failed was my conclusion that his present financial position was such that he was not in any particular financial need: see for example J[381]-[385], [470]-[473] and [478]. He submits that his position would be different – and my findings about his financial position would effectively be falsified – if he were now made to bear the costs of bringing his Succession Act claim. This, he submits, is a reason not to require him to pay the costs of that claim at all. He says that if he is ordered to pay the whole of the costs, he may need to sell his Cammeray investment property. His position was summarised as follows:

9. [13]

   James submits that so far as their case against him was concerned, half of the defendants’ costs are fairly apportionable to the Succession Act claim. That is, of their overall costs, half are apportionable to James and, in turn, half of those costs are apportionable to the Succession Act claim. It follows that of their total costs, only 25% are apportionable to defending James’s proprietary estoppel claim. James submits that it is only the costs of defending the proprietary estoppel claim that he should be ordered to pay.

10. [14]

    For her part, Hannah submits that she is a successful plaintiff and that an award of costs should be made in her favour to reflect that success. She submits that strong justification and exceptional circumstances must exist before a successful party is ordered to pay any part of an opponent’s costs: Arian v Nguyen [2001] NSWCA 5; (2001) 33 MVR 37 at [37]. She also submits that her financial circumstances, which warranted the making of a family provision order in the sum of $300,000, would be materially worsened if she were now made to pay any part of the defendants’ costs of the proceedings. She submits that such an order would cause the ‘intended effect of the further provision … [to] miscarry’.

11. [15]

    Consistently with the approach adopted by James, she submits that half of her costs may fairly be attributed to the cost of advancing her Succession Act claim.

12. [16]

    The defendants’ primary position is that James and Hannah ought to be ordered to pay the defendants’ costs jointly and severally, and there should be no apportionment made as between the plaintiffs. They say that the costs of dealing with James’s claims were not substantially different to the costs of dealing with Hannah’s claims, as there was significant overlap in the issues, and much of the evidence used in support of James’s case was also used in Hannah’s case and vice versa.

13. [17]

    If, as the plaintiffs seek, the costs are apportioned between the plaintiffs, the defendants’ position in relation to James is that he lost and so should pay their costs. They dispute the assertion that half of their costs of the proceedings may fairly be attributed to their defence of the Succession Act claim. Their solicitor, who had day-to-day carriage of the matter from late 2023 through to the conclusion of the hearing, has sworn an affidavit in which he states that the vast majority of the defendants’ costs of the proceedings (more than 95%) were incurred in defending against the plaintiffs’ assertions as to promises made to them in respect of obtaining the farm and that less than 5% (and likely less than 2-3%) of their costs were incurred in contesting the plaintiffs’ financial circumstances. The defendants point out that this estimate accords with the reality of how the final hearing was conducted. The plaintiffs in fact made no submissions on the relief sought in their Succession Act claims until specifically invited to do so by me in closing oral submissions. Even then, the submission put by reference to the Succession Act claim was effectively a reprise of the proprietary estoppel claim.

14. [18]

    The defendants’ primary position in relation to Hannah is that she ‘failed in establishing all of the matters which she advanced, both on her estoppel case (which failed outright) and her family provision case’. To the extent she made any submission at all in relation to her Succession Act claim, it was (as in James’s case) a reprise of her proprietary estoppel claim. She sought funds to acquire a rural property to give effect to alleged promises about her inheritance. She advanced no intermediate position about her financial needs such as that which formed the basis of my conclusions on this issue.

15. [19]

    The defendants submit that they never seriously disputed the aspects of Hannah’s financial circumstances which I found to justify the making of a family provision order. To the extent there was any mention of a family provision order along the lines ultimately made, it was by the defendants, not Hannah. It was the defendants who suggested that if there was to be any order at all, then it should be one sufficient only to meet her demonstrated financial need (as opposed to an order to give effect to Wayne’s promises about owning a third of the farm).

What costs orders should be made in relation to James?

1. [20]

   James was wholly unsuccessful in the proceedings. The starting point is that he should pay the defendants’ costs of defending his claims: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

2. [21]

   Although James and Hannah are brother and sister and although their claims were brought against the same defendants as executors of the estate of their late father, Wayne, in relation to alleged promises made by him, their claims were distinct. They did not necessarily rise or fall together. So far as concerned their cases based on proprietary estoppel, each plaintiff relied on distinct representations, only some of which overlapped. Each claimed to have relied on the representations in different ways and each claimed to have suffered detriment in different ways.

3. [22]

   The defendants have not sought to show that their costs were incurred in relation to Hannah and James in different proportions. It is reasonable in these circumstances to treat their costs as having been incurred in relation to each of the plaintiffs more or less equally: see Chen v Chan (No 2) [2009] VSCA 233 at [10(5)-(6)]. That being so, I accept James’s submission that the starting point is that he should be ordered to pay half of the defendants’ costs, not all of them.

4. [23]

   The question of whether he should be ordered to bear the costs of his unsuccessful Succession Act claim is more complicated. As to the costs of his Succession Act claim, it may sometimes be relevant to have regard to the impact of a costs order on the financial circumstances of the plaintiff. In McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484, Brereton J said at [57]:

5. [24]

   In that case, his Honour noted that the failed plaintiff’s financial position was ‘fragile’: at [59]. His Honour continued:

6. [25]

   James’s circumstances are somewhat different. Although I noted that he was about breaking even in terms of his cashflow, his circumstances can hardly be described as fragile. He has a good income, has no dependents, owns an investment property, can contribute to superannuation (albeit not at the rate of $5,000 per month) and is able to take multiple domestic holidays and an international holiday each year. He has already been left with a legacy of $600,000 from the will, and his claim for further provision was for a transfer of part of the farm or otherwise for a sum of money to fund the purchase of a rural property on which to begin farming in his own right. Like Hannah, James did not raise any intermediate position in the alternative for provision in an amount sufficient to meet his day-to-day financial needs.

7. [26]

   Further and in any event, I do not accept that it is appropriate to apportion costs between the estoppel case and the Succession Act case in the way he suggests. The evidence of the defendants’ solicitor accords with my own experience of the trial, which was that the evidence and submissions, both written and oral, were overwhelmingly concerned with the proprietary estoppel claims.

8. [27]

   It is relevant that the estate also cannot afford to bear the costs of James’s failed Succession Act claim. Practically speaking, those costs will be borne by Abe personally to the extent they are not recouped from James.

9. [28]

   In James’s case, I consider that the ‘overall justice’ of the case is not remote from following the usual rule that costs follow the event: Jvanich v Kennedy (No 2) [2004] NSWCA 397 at [11] (Giles JA, Handley and McColl JJA agreeing). In my view, it is appropriate to order James to pay 50% of the defendants’ costs.

What costs order should be made in relation to Hannah?

1. [29]

   While it is true that Hannah was successful in the proceedings, Hannah’s success needs to be seen in perspective. Although I found that it was appropriate to make a family provision order in her favour, the order I made was in an amount that was only 7.5% of what she was seeking. That order reflected what I considered to be her financial needs – it did not reflect the case she advanced, which was that she needed a sum sufficient to acquire a substantial rural property.

2. [30]

   The defendants say that the matters which ultimately supported my conclusion in relation to Hannah’s Succession Act claim were matters about which there was never any serious dispute. They submit that they never sought to contradict her evidence about her current financial position. They point out that they made an offer to resolve the proceedings shortly prior to the hearing that was for more than the amount awarded which, they say, supports their submission that they did not dispute Hannah’s entitlement to receive a sum by way of further provision broadly in the amount awarded.

3. [31]

   In their written reply submissions on costs, the defendants said:

4. [32]

   These submissions take matters too far. It is true that the defendants did not seek to contradict Hannah’s evidence about her financial position, but their primary stance throughout the hearing was that she should receive nothing by way of further provision at all. Her entitlement to further provision in the sum I ordered was not ‘uncontroversial’, as they now submit. The defendants did submit in response to a question from me that if there were to be any order for provision it should be in an amount far smaller than Hannah was seeking, but they at no point conceded that such an order should be made. The fact that they made a without prejudice offer to settle her overall claim for $500,000 (with the parties to pay their own costs) does not, in my view, have any bearing on the matter. Unless Hannah’s rejection of that offer was unreasonable – which the defendants do not assert – it takes matters nowhere.

5. [33]

   Even so, the matters to which I referred in paragraph [29] are significant. So too is the fact that the defendants did not dispute the evidentiary underpinnings of my findings in relation to Hannah’s Succession Act claim.

6. [34]

   It is necessary in these circumstances to balance competing considerations. Hannah has been partly successful and should not lightly be denied her costs: Harris v Morabito Holdings Pty Ltd [2018] NSWSC 1353 at [18]-[19] (McDougall J). It is also relevant to keep in mind the principles in relation to costs in family provision claims, which I set out at paragraphs [11] and [23] above. At the same time, the defendants have been overwhelmingly successful in a practical sense. Measured against the case actually developed in final submissions by Hannah at the hearing, they were almost entirely successful. It is unreal to suppose that half of Hannah’s costs are fairly attributable to the case on which she succeeded.

7. [35]

   The parties have approached the costs issue on the basis that it is preferable to avoid any attempt to award and assess costs by reference to particular issues. I agree, and note what Beazley, McColl and Basten JJA said on this issue in Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [6]-[7].

8. [36]

   In my view, there should be no costs order in relation to Hannah’s claim. Although she has succeeded in obtaining judgment in her favour, this is a case in which it is appropriate to depart from the rule in r 42.1. It is not very far removed from those cases in which successful plaintiffs have been ordered to pay all or part of a defendant’s costs: Cretazzo v Lombardi (1975) 13 SASR 4 at 12 (Bray CJ, Zelling and Jacobs JJ agreeing); Hughes v WA Cricket Association (Inc) [1986] FCA 511; (1986) ATPR 40-748 at 48,136 (Toohey J). Hannah’s estoppel claim was wholly unsuccessful and took up the vast majority of the time at hearing dedicated to her claims. To the extent that the defendants were put to expense in contesting her Succession Act claim, their costs were almost entirely directed to contesting her claim that she had a financial need for funds to purchase a rural property, which I did not accept. However, be all of that as it may, Hannah has been successful in demonstrating a modest entitlement that was never conceded by the defendants: Mizzi v Reliance Financial Services Pty Ltd [2007] NSWSC 37 at [96] (Brereton J). Appropriate weight must be given to that fact.

ORDERS

1. [37]

   The orders of the Court will be as follows:

   1. (1)

      The first plaintiff is to pay half of the defendants’ costs on the ordinary basis.

   2. (2)

      There is no order as to the parties’ costs in relation to the claims by the second plaintiff, with the intent that each party is to pay his and her own costs of those claims.