Lord v Craig

HIS HONOUR: ‘Proportionality’ is one of those words that is descriptive in concept, explaining a relationship between matters or things [1] . It is used broadly in life and in particular in the law. Quintessentially it takes its meaning from the context in which it is considered.

‘Proportionality’ when used in life may be subjective and truly be “in the eye of the beholder”. Mark Twain famously commented that “by the eternal laws of proportion a child's loss of a doll and a king's loss of a crown are events of the same size” [2] .

Inherent in the nature of ‘proportionality’ is the idea that there is a proper balance between the matters being considered [3] . The adjective ‘proper’, whilst context specific, generally conveys the notion of something being fit or suitable or appropriate to a particular purpose or circumstance [4] . What is proper and what is proportional is thus understood by reference to a standard which in life and litigation is either fixed or constant [5] , variable or evaluated according to criteria.

‘Disproportion’ inevitably varies according to subject matter and values. Inheritance and events connected to it and flowing from it has particular capacity to provoke strongly disproportionate reactions. Machiavelli noted that “A son could bear with great complacency, the death of his father, while the loss of his inheritance might drive him to despair.” [6] .

Family provision litigation in one sense is essentially premised upon an asserted failure on intestacy or (more usually) by a testator to proportion his or her estate to make adequate and proper provision for the applicant.

The assessment of what is a proportionately appropriate outcome or more particularly what is “proper and adequate provision” is not left to the vagaries of the parties’ perceptions of entitlement or subjective or arbitrary determinations.

Principally, the legislative model under the Ch 3 Succession Act 2006 (NSW) (Succession Act or SA), as with earlier family provision legislation, permits certain classes of applicants to consider making within prescribed time periods applications to address perceived inadequacy of provision from an estate.

Judges are entrusted to decide whether intervention is appropriate in any given case. Assessment of what is adequate and proper is not made by or limited to any fixed concept of those matters but by reference to the facts and circumstances of each individual case [7] and by reference to general knowledge and experience of current social conditions and standards [8] . The statutory scheme allows flexibility for the judicial function to be exercised over time as society evolves and community standards change [9] . It requires an evaluative judgment that has regard to all relevant circumstances [10] .

Determinations of what is proportionate or proper lies not merely in the realm of substantive outcomes in family provision proceedings but extends to the question of costs of such proceedings. Proportionality is particularly vital in circumstances where the value of property being contended over is modest or meagre. This is one of those cases. Proportionality of costs may be considered and dealt with in a number of ways, one of which includes relevantly in this case consideration of ‘costs capping’.

Cost capping in family provision proceedings at the conclusion of the litigation is occasional but not common. The determination is contemporaneous or retrospective in light of the final determined outcome of the proceedings. However, family provision cost capping applications at an early interlocutory stage (prospective capping) have been very rare. This appears to be the first case [11] in which a contested application for a cost capping order has been both made and heard prior to completion of all interlocutory steps and in advance of the allocation of a hearing.

The substantive case involves a family provision application under the Succession Act in relation to the estate of the late Barry Lord (deceased) who died on 28 May 2024, aged 77, leaving a Will dated 3 November 2021 (Will). In circumstances more fully recounted below, the deceased’s estate was very modest in value approximating (net) $135,674 [12] and entirely distributed. The contest is between 2 of the deceased’s 5 children, being the plaintiff who seeks provision having received nothing from the deceased estate and the defendant whom the deceased appointed as executrix under his Will leaving the entirety of his estate to her.

In circumstances where the parties have incurred actual costs in the sum of $62,416 incl GST [13] (approximately 46% of the net estate), the defendant seeks a costs-capping order for both parties. Having regard to actual costs, and estimated costs to a hearing the total amount of costs would effectively consume the entirety of the net estate.

No formal order has been made for the defendant to represent the estate of the deceased. Representation of the estate for progression of the proceedings and any potential family provision order that might be made, will need to be regularised, and I will do so below.

Ultimately, I have determined to make a prospective cost capping order. In the absence of any prior precedent of a contested application, it is timely to address the basis of capping in a detailed and principled way, and to explain my reasons later on for doing so. By way of summary overview the following may be noted.

Capping at an early interlocutory stage must be legally principled and involves an evaluative determination of relevant matters including proportionality considerations rather than being determined by fixed percentages or rules of thumb. The capping power serves various objectives including ensuring that the purposes of family provision jurisdiction are not frustrated or thwarted.

In any proposed application there will need to be a sufficiency of materials on which the Court is able to make the evaluative assessment in which having regard to the nature of the process precision or exactitude is not possible or warranted and there may be a range of appropriate capping outcomes based on the evaluative assessment.

Self-evidently, prospective capping will be on the basis of information or evidentiary materials, some or all of which may be untested (at least by cross-examination) and in any event inherently less certain and incomplete than exists at or after a final hearing. The lack of certainty may vary in extent depending upon how early in the interlocutory stages of the proceedings the application is made and heard and the nature of different sorts of information (some details being more readily capable of ascertainment and less subject to change than others).

A capping order may be able to be made notwithstanding some uncertainties if the judge determines that information is ‘sufficient’ to make an evaluative assessment. In this regard, risks attendant upon prospective cost capping may vary in nature and degree but are ameliorated by the qualification that a prospective capping order is subject to subsequent final variation to address (if need be) the ultimate justice or interests of justice of the case.

Sometimes the evidentiary materials will be too sparse or uncertain to enable the evaluative assessment to be adequately made. In such cases the application might have to be dismissed or alternatively deferred for a short time pending receipt of further information.

This case involves purely a family provision claim. Other considerations informing capping will apply if the plaintiff seeks additional relief (e.g. probate or trust relief), reflective of the purposes of such other jurisdictional relief.

The Court will be amenable to receiving proposed consent capping orders at interlocutory stages. Nonetheless, in light of the nature of the jurisdiction and the purposes to be served, the Court will not merely make such orders without due consideration.

The deceased was married to Cherylyn Georgina Hodges (Cherylyn), and they divorced in 1992.

There are five children of the marriage being relevantly Heidi Jayne Craig (Heidi/defendant) aged 54, Rene Lord (Rene), aged 52, Amy Handel (Amy) aged 50, Kurt Edward Lord (Kurt/plaintiff) aged 45 and Sarah Clementi (Sarah) aged 44.

The deceased, for the last 19 years of his life, from approximately 2005, lived in Nelson Bay. The plaintiff moved to Waterford, Ireland in 2020 with his former partner, and currently lives there with his daughter, Isabelle aged 5. The defendant is married to or in a relationship with Chad Islip and she has 3 children, Blake, Brennan, and Olivia. She lives in Gymea with Chad, her mother and her children.

The defendant asserts that prior to the deceased's death, he instructed her to transfer certain property of his to her.

The deceased's estate is on any view of it small. Seemingly from about 4 February 2025, the plaintiff by his solicitors corresponded with the defendant’s solicitor, Gregory Miller of Willis & Bowring (Mr Miller), seeking information regarding the deceased’s estate.

On 20 March 2025, Mr Miller responded to the plaintiff's solicitors indicating that the only two assets of the deceased estate were two bank accounts with the National Australia Bank containing approximately $144,000 and liabilities including funeral and burial expenses totalling $16,809.55 leaving a net amount of $127,190.45 which had been distributed to the defendant.

It is evident from evidence which I will briefly refer to below that the defendant within approximately a month of the deceased's death had transferred all the net proceeds of the deceased's NAB accounts to her and applied those funds (she says) as follows:

On 24 March 2025, the plaintiff's solicitors responded to the defendant’s solicitors seeking details as to how distribution occurred without probate of the deceased's Will and the date of distribution, asserting that distribution of the estate was "improper" and in breach of the defendant's obligations as executrix.

On 27 May 2025 (a day before the 12 month expiry of the limitation period), the plaintiff's solicitors filed a summons on his behalf seeking a family provision order pursuant to SA s 59 and orders designating property as notional estate including orders requiring return of any distributed assets of the estate.

On 3 July 2025, the summons was returnable and various procedural directions were made by Acting Registrar Chetty including allocating the matter for a half day Court-annexed mediation on 1 October 2025.

Procedurally, the matter progressed conventionally. Prior to the mediation the respective solicitors for the parties (Adrian Corbould for the plaintiff and Mr Miller for the defendant) provided costs’ affidavits for costs up to and including the mediation. The plaintiff provided an affidavit in chief with an exhibit, the defendant provided the administrator’s affidavit and a further affidavit in reply to the plaintiff's affidavit and addressing the defendant's financial circumstances.

On 1 October 2025, the matter was mediated before Senior Deputy Registrar Czerwinski. The plaintiff did not physically attend and it seems no request was made by the plaintiff for an AVL mediation. Suffice it is to say that the matter did not resolve at mediation. On 16 October 2025, the matter was listed before Registrar Gerritsen. An order was made extending the time of the plaintiff to file and serve a reply affidavit. Relevantly, the matter was stood over to 6 November 2025 with a notation that the matter may be referred on that date to the Family Provision List Judge in relation to cost capping.

On 4 November 2025, the plaintiff served his reply affidavit.

On 6 November 2025, the matter was listed before Registrar Gerritsen. There was a notation that “the defendant is seeking cost capping orders” and sought a referral to myself as Family Provision List Judge. The defendant was directed to provide certain affidavit materials and a draft of the proposed cost capping orders by 4 PM that afternoon, which occurred.

Eligible persons have been served with Notices of Claim and it appears that the plaintiff is the only child of the deceased making a claim [14] .

On 7 November 2025, the matter was listed before me for “directions” but was, after discussion heard by me. Mr Price of counsel appeared for the defendant. Ms Wilcox of counsel appeared for the plaintiff.

Mr Price intimated that initially, the application was formally the Court’s own motion [15] . That seems at odds with the above-mentioned order of Registrar Gerritsen. However, it is not necessary to reconcile that matter because Mr Price accepted that substantively “it is the defendant has been pushing for the capping of costs in this matter” [16] .

Formally, Mr Price made an oral application on behalf of the defendant seeking cost capping orders pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.4 and Civil Procedure Act 2005 (NSW) (CPA) s 98(4) in accordance with MFI-1 (application) [17] . I noted the application was opposed by the plaintiff who contended inter alia that the question of any capping of costs should be dealt with only at the final hearing and that the parties should be directed to return to mediation/informal settlement conference [18] .

I recorded the affidavits read by the respective parties on the application (including the affidavit evidence filed thus far) which was read without objection. Counsel then made certain oral submissions. I raised with them a number of issues, made directions seeking clarification on a number of issues including costs and provided them with an opportunity to briefly supplement the submissions addressing particular aspects of the interlocutory cost capping jurisdiction invoked.

Subsequently with the submissions provided, Mr Price also in seeking the orders, relied upon the inherent jurisdiction of the Court [19] .

Relevantly, the position in respect of costs is that the plaintiff has a conditional costs agreement with his solicitors pursuant to s 181 Legal Profession Uniform Law (NSW) (LPUL). The conditional costs agreement is said to contain an uplift of 25% to be applied to professional fees if the plaintiff obtains a successful outcome in the proceedings. On 29 May 2025, Mr Corbould estimated that the plaintiff’s costs and disbursements calculated on an indemnity basis, up to and including the completion of a mediation totalled $37,400 (being solicitors fees of $25,000, an uplift of $6,250, and disbursements of $2,750 and GST).

On 12 September 2025, Mr Miller estimated the defendant's costs calculated on an indemnity basis up to and including the completion of the mediation to be approximately $25,000 (being solicitor’s costs plus GST $15,950, disbursements $500, and counsel's fees plus GST $8,800).

On 6 November 2025, Mr Miller estimated that the defendant would incur further costs on an indemnity basis of between $25,000-$30,000 to the completion of a one-day hearing.

On 17 November 2025, further cost details were provided by email to my Associate as follows.

For the plaintiff Ms Stratford confirmed that the plaintiff’s actual costs to date are $44,416 incl GST of which $1,351 (a filing fee) has been paid leaving $43,065 remaining unpaid (being professional fees $30,000, uplift $7,500, counsel’s fees $5,500, disbursements $1,100, GST $3,915). She estimated that the plaintiff’s total costs, up to and including a one-day hearing to be $83,851 incl GST (professional fees $40,000, uplift $10,000, counsel’s fees $20,000, disbursements $5,000, GST $7,500 filing fee $1,351).

Mr Miller indicated that the defendant’s solicitor’s costs to date are $13,500 incl GST (unpaid) and counsel’s costs to date are $4,500 incl GST (paid) (totalling $18,000 incl GST). He noted that since the mediation, they had undertaken additional work including appearances before the Registrar and myself, preparation for that hearing and preparation of written submissions. He indicated that counsel had not made a final decision as to any whether any of those costs will be charged and is contemplating that they would not be, in light of the size of the estate. Otherwise, the fees were in accordance with his 6 November 2025 affidavit.

It is unnecessary for me to recount all the details of the plaintiff's claim and the defendant’s response to it. Briefly, the plaintiff's claim for provision and the parties’ financial circumstances are as follows.

The plaintiff is currently renting and (seemingly) lives alone. I infer Isabelle lives with her mother. The plaintiff is employed as a branch manager with McDonnell Bros. As at 16 July 2025, he had a gross fortnightly income of €1,686 (approx. AU$3,001) and fortnightly expenses including rent total AU$2,011.

He has minimal assets including a car, monies in a bank account and a television, which in July 2025 approximated approximal AU$16,650. He had liabilities totalling approximately $20,358 including a personal loan and a credit card with the Bank of Ireland.

His claim for provision is specified as being:

The defendant lives with Chad, her children and mother.

She is employed full time as a nurse with gross fortnightly income of approximately $3,711. The family’s fortnightly expenses total $4,960. Neither the plaintiff's mother (who receives an aged pensioner) nor daughter (who works casually as a dental nurse and nanny earning approximately $600 per week) contribute financially to the household.

The defendant and Chad own joint assets. This includes:

Their liabilities are as follows:

The defendant provides financial assistance to her daughter and her mother.

The orders sought by the defendant were embodied in proposed short minutes of order (MFI 1) as follows:

Ms Wilcox did not accept that a grant was unnecessary to administer the estate. However, subject to that she did not dispute notations 1–8 of the defendant's proposed orders.

Much of the time associated with the hearing on 7 November 2025 was devoted to counsel informing me of a degree of the background of the case and the nature of the case, noting and reading evidence, and attending to procedural matters and the making of directions.

The submissions were conducted at a relatively high level including attempting to establish whether there were any precedents of interlocutory family provision costs orders. Mr Price provided me with a few authorities, which he briefly addressed and to which Ms Wilcox briefly responded. Because the matter was of some complexity I indicated to Ms Wilcox (who had not previously appeared in the matter) that whilst I would be grateful to hear from her, I did not expect her to be immediately ready to advance every argument that she might wish to put, and that there would be an opportunity for written submissions [20] .

Essentially the supplementary written submissions of counsel have covered the matters raised orally during the hearing and for that reason I will record the parties’ submissions by reference to the written submission documents.

Mr Price’s written submissions (DS) regarding the legal position covered a number of the matters that I have outlined above. In summary I note he contended:

In the instant case, Mr Price identified the following factors the Court should consider in determining to whether to make a capping order:

He added the following [33]

Mr Price also referred to other types of “pre-emptive” costs orders such as Beddoe orders [34] , and applications to bring derivative claims. It is not necessary for me to explore such matters.

Ms Wilcox’s written submissions (PS) also addressed a number of the cases that I have outlined above. She did not contend that there are any other relevant heads of power to permit cost capping than those relied upon by the defendant [35] . She contended that capping orders should only be applied at an interlocutory stage in family provision proceedings in “exceptional” cases of which this was not one [36] .

Further, (in summary) she contended:

The concept of cost capping is described in various ways in different jurisdictions and sometimes within the same jurisdiction.

In New South Wales (NSW), the statutory provisions refer to costs capping as a “maximum costs” order. In some jurisdictions notably Victoria [54] , but also in NSW [55] terminology of a “protective costs order” is also used. One needs to be precise about what is being addressed because of variations of terminology. In NSW a form of “protective costs order” has various meanings in particular for example it is used to describe the type of costs order where the Court has power to appoint a tutor on terms that protect the tutor from personal liability for costs [56] . In England, distinctions are made between a “protective costs order”, which protects a party against liability for the other party’s costs on the one hand and a costs capping order on the other, those being two distinct types of orders whereby the court may limit the costs payable [57] . Nonetheless, the range of circumstances in which costs orders are sought may involve both a protective and capping aspect to the orders sought and made [58] .

Notwithstanding that the NSW provisions use terminology of “maximum costs”, it is commonly known as a form of “cost(s) capping” and for convenience I will generally use that terminology or “capping”.

There is a distinction between capping costs and fixing costs. Fixing costs obviates assessment but nonetheless acts as a cap. Capping costs does not necessarily obviate assessment, but may practically have that effect (e.g. if it is self-evident that the likely amount of costs if assessed, would on any view of it exceed the capped amount, the other party may agree to pay a capped amount removing the need for any cost fixing order and assessment [59] ).

The distinction was helpfully explained by Ball J in Baychek [60] as follows

Proportionality in law differs according to context. For example, it has particular meaning in constitutional law [61] .

In some cases, the proportionality consideration might be considered from a perspective of costs to the value of the result [62] . CPA s 60 references proportionality of cost to the importance and complexity of the subject matter in dispute [63] . The greater the number of things that are desired or required to be proportional, the more difficult it may be to achieve ideal proportionality.

However, ideal justice is not necessarily or even principally a relationship between a fixed object of costs and other litigious aspects [64] . The factors relevant to the exercise of the discretion to make a capping order will vary depending on the nature of the litigation, and the circumstances of the case. Indeed, as has been observed, the factors that may be relevant to cases in which the issues might be simple or the matter in dispute of small or low monetary or other value, where disproportionality of costs is the critical concern, will differ or have different weight to the factors that may be relevant to other litigation where those matters are larger or considered more priceless [65] .

Provisions regarding capping of costs have been enacted and operate in various jurisdictions both in Australia and the UK. The provisions in each jurisdiction vary in content. They have emerged in contexts involving a legislative response to concerns regarding disproportionate litigation costs and serve various purposes. Broadly speaking they contain provisions that empower the court to make a capping order, set out considerations that may be taken into account, sometimes indicate what costs are to be excluded from any such capped amount [66] , provide for the court to make directions regarding capping determinations and for variation of such orders.

Capping orders (at least by statutory provision) were first introduced in Australia and the Federal Court in 1993 [67] . In the UK, case management powers have for some time been held to justify capping. Particular provisions were introduced with the reforms of the introduction of the UK Civil Procedure Rules in 1998.

In NSW, costs are in the discretion of the Court, subject to CPA, rules of Court and any other Act. The Court has full power to determine by whom, to whom and to what extent costs are to be paid and may order that costs are to be awarded on the ordinary basis or on an indemnity basis. Ordinarily, if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs [68] . Generally, costs payable to a party under an order of the Court are to be assessed on the ordinary basis [69] . The Court is empowered, pursuant to s 98(4)(c) CPA, to make a specified gross sum costs order instead of assessed costs.

In NSW, the specific power in the Court to cap or order “maximum costs” was introduced in January 2000 [70] .

The Explanatory Note accompanying the amendment is quite unilluminating [71]

Notwithstanding the introduction of the capping power, its initial use was rare. Indeed, at least as at the time of the August 2005 commencement of the civil procedure reforms in the CPA and UCPR, there not did not appear to have been any cases in which provisions of that Rule had been discussed or applied [72] .

The current capping power UCPR r 42.4 introduced in 2005 is in terms expressly replicating the original provision (SCR Pt 52A r 35A).

The Court of Appeal has not readily embraced opportunity to definitively state whether and to what extent the provisions of s 98 CPA or indeed its inherent jurisdiction may be used as a source of power for prospective costs capping [73] . It is not hard to find judgments in which the provisions of s 98 CPA generally are coupled with UCPR r 42.4 as being a source of capping power.

In any event the debate is not of great significance, because at an interlocutory stage, undoubtably UCPR r 42.4 enables capping of costs.

UCPR r 42.4 provides as follows:

Guidance as to the operation of UCPR r 42.4 has been provided in various cases but in particular by the Court of Appeal in Delta - CA [74] .

Basten JA noted as a matter of construction, the rule, in its terms, is not limited to purposes identified in caselaw in other jurisdictions and restrictions on its operation must be identified by reference to its language and the context in which it appears and the jurisdiction in which it is invoked, rather than by reference to extraneous materials [75] .

The differences in language from other jurisdictions cautions against identification of purpose and unqualified application of caselaw from such jurisdictions [76] .

His Honour observed that that the structure and context of the UCPR provide no assistance in considering the functions and scope of the capping power in UCPR r 42.4 [77] .

Nonetheless, Basten JA commented regarding purpose that the relationship between UCPR r 42.4 and the case management provisions of ss 56-60 CPA (partly reflected in r 42.4(3)) “supports the view that a costs capping order may properly be made to “curb the tendency of one or all parties to engage in disproportionate expenditure on legal costs”, and to maintain “[p]roportionality of costs to the value of the result” [78] .

However, Basten JA qualified his comments by observing that it did not follow that those are the only purposes or circumstances in which an order can be made, but rather they reflect the concerns which arose in Sherborne [79] . Beazley JA agreed on that point [80] . In litigation where there is a public interest nature in the proceedings, that will be a matter directly relevant to the propriety of a capping order [81] .

In Caroona Preston CJ observed that [82]

Dal Pont observes [83]

Specifically, in Delta - CA the Court of Appeal noted that where a broad discretionary power is conferred on a court, it is important that the full range of permissible considerations is identified and that limitations which do not find reflection in the language of the rule not be imposed [84] .

The Court must seek to give effect to the overriding purpose of the facilitation of the just, quick and cheap resolution of the real issues in the proceedings when it exercises the UCPR r 42.4 power [85] , even if the application of the various criteria in the case management provisions of ss 56-60 CPA are not without difficulty [86] .

Leaving aside more general purposes of the power within the context of litigation, from the perspective of the individual parties, the purpose of a capping order may be varied but includes limiting the potential liability of a party in the event that it fails to obtain an outcome sought. In such a case a balancing consideration is that it will limit that party’s ability to recover costs it has expended in successfully pursuing or defending the proceedings [87] .

Vitally, the very nature of the power itself means that exercise of the power involves some identification or conception of the likely final costs order [88] .

In some cases, there are calls for addressing what costs may be recoverable as between solicitor and client [89] . However, ordinarily the UCPR r 42.4 capping power is not intended at least in its terms to cap costs as between solicitor and client but rather costs that may be recovered by one party from another or from an estate [90] .

Dal Pont notes that [91]

Procedurally, the following may be noted:

Dal Pont observes that as the relevant provisions furnish no indication as to the process or standard the Court should adopt in prescribing the maximum costs, the matter rests on the proper exercise of judicial discretion [100] .

Dal Pont goes on to state

Nonetheless in NSW, conceptually and in respect of quantum, it is clear that the exercise of the power:

Considerations that may be taken into account include (in part by analogy to other cost powers) the extent of costs actually incurred, the circumstances of the time at which they were incurred, whether they were reasonable in those circumstances and what would have been a reasonable amount to have been incurred [110] .

Capping is inherently interlocutory, and capable of being the subject of a costs variation order if need be. Nonetheless the use of UCPR r 42.4 is intended to have a semi-final effect at least in a practical sense, in that the power of variation is qualified by reference to it being in the interests of justice to make a variation order and the requirement for there being special reasons to do so [111] .

Reasons which might lead the court to ultimately vary an interlocutory costs capping order include, for example, a material change of circumstances [112] .

Family provision legislation evolved generally and in NSW in 1916 [113] in a context of societal debate regarding injustice in testamentary provision. The context included concern for protection and a recognition of women’s rights in their position as widows, redressing the imbalance, at least in part, caused by the demise of the common law right of dower and public prominence of issues of injustice arising in a number of cases from the vagaries of testators leaving Wills making no provision or inadequate provision for persons to whom they had a moral obligation to provide [114] .

The initial statutory purposes have not remained static. Societal change and periodic review of legislation led in NSW to two revisions of the family provision regime namely under the Family Provision Act 1982 (NSW), commencing in September 1983 and the Succession Act commencing in March 2009.

The legislation may be seen as a response to societal concerns and broadly speaking family provision legislation proportionately serves to subject freedom of testamentary disposition to discretionary curial intervention in certain classes of case, by reference to assessment of adequacy of provision for the proper maintenance, education or advancement in life of an eligible person [115] .

Specifically, the family provision jurisdiction in permitting discretionary curial intervention impacts the entitlement of beneficiaries of the deceased’s estate (whether by testamentary provision or on intestacy), only so far as is appropriate to address each case of alleged inadequacy of provision on its terms and does not extend to authorising general redistribution of estates by reference to other notions of general ‘fairness’ or otherwise.

Thus, in the context of costs fixing to address a case of grossly disproportionate family provision costs, it has been recognised that one purpose of the jurisdiction is to protect (or at least appropriately balance) the entitlement of beneficiaries of the estate. In Underwood v Underwood Jones J stated [116] :

Costs of family provision proceedings are a necessary consideration of the exercise of the jurisdiction to make a family provision order not least because the cost of an executor or administrator in defending the proceedings are ordinarily a testamentary expense and the Court must have some conception of the size of the net estate (actual or notional) in determining such claims.

The purposes of the jurisdiction may be frustrated by or miscarried due to various factors including the impact of legal costs. This is especially so if the liability of a successful applicant for costs either to his or her own legal representatives or another party exceed the provision ordered for the applicant [118] .

The current legislative framework for making costs orders in family provision cases includes not merely the CPA (incl s 98) and the UCPR (incl Pt 42), but also the SA (especially s 99), the Trustee Act 1925 (NSW) (especially s 59) and Practice Note SC EQ 07 – Probate and Family Provision List (PN EQ 7).

The expectation of the Court in PN EQ 7 outlining guidance in family provision proceedings is a significant aspect which informs the purposes and framework for making costs orders in family provision proceedings and cannot be underestimated. This includes:

Thus, the legislative and procedural framework within which family provision proceedings are routinely conducted

In family provision proceedings per se elements that impact upon the question of costs include the role the parties play in the proceedings, the subject matter of the litigation and whether a particular part of the estate property (or any designated notional estate) in the opinion of the Court is the real subject matter of the proceedings, and whether there are limitations on designating property for the purposes of making a costs order [124] .

Particular aspects of family provision costs differ from ordinary litigation and bear upon the question of costs orders generally and in particular costs capping orders. These include at least the following.

First, representative costs in defence of family provision proceedings, unless unreasonably incurred or incurred in circumstances in which the representative has in substance acted for his or her own benefit rather than for the benefit of the estate, will ordinarily fall within the description of being a “testamentary expense” and for that reason be payable out of the estate, calculated on the indemnity basis [125] .

Secondly, whilst the default rules in UCPR r 42.1 and r 42.20 UCPR apply to family provision proceedings [126] family provision costs (in particular regarding the costs of applicants) tend to depend upon the “overall justice of the case” [127] , which though “not remote from costs following the event” [128] nonetheless calls for consideration of additional “liberality and discrimination” in exercise of the costs discretion and whether to override the usual rule [129] .

Thirdly, it is not uncommon, though atypical, for an unsuccessful applicant not to be ordered to pay the defendant’s costs where the applicant is or would become impecunious and the claim for provision was reasonable or borderline [130] .

Fourthly, generally in litigation impecuniosity of an unsuccessful party, without more, is no reason to deprive a successful party of an order for costs. However, the impecuniosity of an unsuccessful applicant for family provision is of greater than usual relevance, at least because adverse costs orders might alter the basis on which the claim for provision was rejected, and thereby cause or justify a further application [131] .

Fifthly, it is notorious that predictability of the outcomes of family provision claims is not quantifiable by the parties’ legal advisers prior to judgment with anything like the degree of certainty that applies in other areas of civil law [132] .

Sixthly, “although family provision claims can only succeed or fail, those binary outcomes tend to conceal difficult and even “borderline” questions of the nature of the evaluative and discretionary judgment of such claims”. That is one reason for the more liberal approach to costs. [133]

Since the inception of family provision litigation, the Court has expressed concern regarding the level of costs incurred in such claims [134] .

It has been said that an order fixing costs in family provision proceedings should not be seen as anymore exceptional than an order for capping of costs and that the nature of that enquiry in respect of both is not materially different [135] . Further that the principles relevant to costs capping are also relevant to the discretion of whether to award costs at all if part of the costs are already included in the amount of the judgment [136] .

Since the turn of the century, the last 25 years have seen several trends of costs capping within the family provision jurisdiction.

Broadly speaking, in the first decade of this century, concerns regarding disproportionate costs in family provision proceedings were characterised by various cycles of legislative reform and judicial response.

In January to March 2000, the initial legislative capping provisions [137] , albeit commencing two months prior [138] , were a part of the same amendment to the Supreme Court Rules, namely the overriding purpose of the Court to facilitate the just, quick and cheap resolution of the real issues in proceedings [139] .

In the early 2000s, readiness of judges to consider cost capping was evident [140] . The initial judicial response was characterised to a large degree by the pragmatism of Young CJ in Eq in a number of decisions emphasising imperatives of proportionality of costs and duties of practitioners in that respect [141] and limiting costs to no more than the amount of the legacy recovered [142] . This was a type of “award/costs parity rule of thumb”. This approach was contemporaneously adopted by a number of other judges in family provision or other statutory property adjustment claims [143] and indeed persisted by Justice Young in later years [144] .

In 2004, the Court of Appeal recognised assessment of costs must bear a reasonable relationship to the value and importance of the subject matter in issue [145] . However, in Jvancich it was observed that it had not been practice in Australia for the Court to fix an amount of costs (in context of a faint submission based on observations by Young CJ in Eq in Moore that “judges will not allow more than $35,000 in costs to any party in this type of case unless there is some special justification”) [146] .

Dal Pont, noting the first instance capping decisions (including what I have described as the award/costs parity rule of thumb) prior to Jvancich comments that the Court of the Appeal (in Jvancich) “subsequently sought to constrain the scope of this practice — fearing that courts are rarely positioned to know whether or not costs to or in excess of a suggested cap were reasonably incurred” [147] .

Mid-decade, 2005 was a watershed year with legislative enactments and judicial pronouncements impacting upon cost proportionate litigation and cost capping.

The civil litigation reforms in 2005 emphasised proceedings being disposed of at a cost affordable to the respective parties [148] and proportionate to the importance and complexity of the subject-matter in dispute [149] . The concomitant introduction of a Practice Note which expressly foreshadowed capping in family provision proceedings tied it to concerns regarding proportionality of costs [150] . Since then, Practice Notes bearing upon family provision proceedings have consistently foreshadowed the prospect of cost capping orders albeit that the estate threshold size has been raised to $1 million [151] .

In October 2005, the seminal decision of Palmer J in Sherborne [152] (the first of a number of cases considering the capping provisions of r 42.4 UCPR) was a landmark moment which had a profound effect on approaches of judges generally to cost capping in litigation and in particular in relation to family provision claims.

In Sherborne [153] , Palmer J, in typically insightful and eloquent language, brought to powerful crescendo cost capping considerations highlighting the Court’s role in curbing the tendency of parties to engage in disproportionate expenditure on legal costs and the desire of parties to zealously vindicate through family provision proceedings family grievances or personal animosity [154] .

Further legislative reforms led to the enactment and commencement of Chapter 3 Succession Act in March 2009 including specific provisions designed to address increasing and disproportionate costs. This included mandatory mediation and broad regulation making power dealing with advertising and costs highlighted in the Second Reading speeches for the Succession Amendment (Family Provision) Bill 2008 (NSW) which resulted in Chapter 3 Succession Act [155] . The instances of 2 cases cited by the Attorney-General of disproportionate costs involved costs approaching 25% of the deceased estate [156] .

In addition to comments as to disproportionality of costs per se, the speeches included concerns regarding the making unmeritorious claims, accessing money from the deceased's estate (eroding its value [157] ) to fund legal costs without any restriction, and numerous instances of cost blowouts [158] .

In relation to capping of costs it is significant that the regulation making power under the Succession Act expressly contains a provision with respect to the costs of family provision proceedings including the fixing of maximum costs for legal services that may be paid out of the estate or notional estate of the deceased [159] . However, there are no such regulations that have been made, and the Succession Regulation 2025 does not address that matter.

In the above context, in 2009 the Court of Appeal had no difficulty recognising sufficiency of power to cap costs and further finding no cause to interfere with the exercise of the discretion of an Associate Justice capping costs at no more than the quantum of the legacy ordered in view of his Honour’s extensive experience in family provision proceedings and knowledge of the general level of costs in such cases [160] .

Despite the “pause for thought” provided by Jvancich, Dal Pont observes that these reforms “reinvigorated trial judges in utilising their power to fix costs as a vehicle to secure proportionality in family provision disputes” [161] .

The pragmatic rule of thumb (award-costs parity) whilst useful, was recognised by some judges as one which had to be applied with caution and having regard to the circumstances of the individual case [162] . In some cases, capping orders were foreshadowed [163] or made [164] but in other cases judges considered it more appropriate to leave questions of proportionality of costs to the costs assessment process [165] .

The next 15 years between 2010-2025 have seen an evolution of the capping jurisdiction in family provision claims principally by reference to the creation of a dedicated Succession List, revised Practice Notes and occasional judgments highlighting various aspects of costs capping in family provision claims. Large cost concerns have continued. In some instances, capping orders have been foreshadowed [166] and in other instances made [167] .

The capping jurisdiction extends to the costs not merely of plaintiffs but also of administrators or other defendants. However, there are few instances of administrators or defendants’ costs being capped [168] . Capping of defendant’s costs have occurred in family provision cases at least where in substance the proceedings have been conducted as adversarial proceedings between family members with a nominal defendant having an ‘economic interest’ in the outcome [169] , or where the proceedings are defended by the administrator for his or her own benefit rather than for the benefit of the estate [170] .

Capping is informed by the nature and purposes of the jurisdiction. Other features of family provision proceedings which have been said to bear upon questions of capping and fixing costs include [171] : (a) such proceedings are concerned with the proper distribution of a fixed pool of assets; (b) expected outcomes may be quite small, such that it is reasonable to expect that the costs will be proportionate to the amount claimed size of the estate and the nature of the issues in the case; and (c) such claims often involve considerable personal animosity, and parties are often more concerned to vindicate their position than to resolve the dispute as efficiently and as cost effectively as possible.

Certain aspects of family provision costs capping and guides which have emerged from the last two decades include guides or indications that:

The uniqueness of each family provision case in which capping has been considered and the relatively very small sample size (seemingly no more than about 30 or so cases in which capping orders have been actually made consequent upon the final hearing of a family provision case) defy or at least powerfully count against any meaningful statistical analysis of retrospective capping orders. To the extent that anything even remotely like a tentative “trend” can be gleaned, in a number of the cases the total estate is 5 times larger than the corresponding cost caps and in a number of the cases the cap imposed is somewhere between 50% to 100% of the party’s total cost estimate. However, ultimately, I consider that very little can be gleaned from attempting any useful extrapolation from capping percentages that have appeared in those 30 or so cases.

Relevant to an assessment of costs capping is understanding of the sort of costs that might be incurred in what I hesitatingly describe as “standard case costs”.

Costs in family provision proceedings are generally approximated at two stages being (a) costs up to mediation and (b) costs through to a final hearing. This is reflected in the Practice Note which requires estimates at those stages [197] .

Obviously, the cost associated with each family provision claim will differ to some degree. Nonetheless, there is a basic threshold of irreducible core of work necessary to progress or defend any family provision claim (about which I will comment further below) and certain common aspects which have allowed judges to make some comment over time regarding such “standard costs”.

In 2013, the expectation of the List Judge at that time was that on each side, a reasonable range of costs up to and including a mediation in a sufficiently informed state to allow early resolution of claims was $20,000 to $25,000 [198] .

Currently (2025), through my review of cost affidavits in the conduct of the Family Provision List, each party’s costs up to mediation has doubled such that cost estimates are very regularly in the order of $35,000 to $50,000 (being closer to $50,000 if any defendant’s reply evidence is put on).

In some instances, there are higher estimates than even that, which might be concerning but nonetheless explicable in some cases. The Practice Note does not expressly require details of charging rates in family provision cases. In cases where costs exceed beyond the range I have indicated, the costs affidavit ought to as a matter of transparency explain the reasons for the large amount of costs whether it be dint of the complexity, the charging rates or otherwise.

In 2004, Young CJ in Eq in Moore (obiter) stated [199]

The objection of the Court of Appeal in Jvancich in declining to accede to a “faint suggestion” based on Moore that that plaintiff/respondent’s costs should be limited to $35,000 [200] , acknowledged the obiter nature of the comments in Moore. It is evident from Jvancich that Giles JA’s concerns were the inappropriateness of a “general ceiling”, the fact that the Court was not in a position to limit costs in an informed matter and the fact that questions of reasonableness of costs and proportionality would be a matter for the assessor so far as it may properly be taken into account [201] .

In 2011, in Tobin – Costs, Brereton J expressed the provisional view (with which the parties did not disagree) that taking into account the passage of time since the judgment of Young CJ in Eq (as his Honour was then) that [202]

Speaking in 2017 Slattery J in Wilson stated [203]

Judges (dealing with family provision cases) are well-placed both by dint of their experience and knowledge of the general level of costs in such cases to exercise a capping discretion [204] . Supervision of the Family Provision List in recent years (2023-2025) and anecdotes suggest that currently a “standard case” will involve costs in the order of $90,000 to $100,000 for a one to two day hearing and $100,000 to $120,000 for a 3 day (more complex) hearing.

In NSW, s182(1) LPUL permits uplift fees in conditional cost agreements, but only if the law practice has a reasonable belief that a successful outcome of the matter is reasonably likely [205] and that the uplift fee does not exceed 25% of the legal costs (excluding disbursements) otherwise payable. [206] Jagot J in Kain v R&B Investments Pty Ltd [207] described this as a “carefully worked out scheme” which compensates the law practice for taking the risk of being unable to recover their costs of funding the proceedings, and potentially being liable to pay an adverse costs order against their client [208] .

Thus, it is not uncommon in family provision litigation for solicitors, pursuant to s182 LPUL, to act under a conditional fee agreement accounting for a form of uplift success fee, given the litigation “risk service” [209] they are providing.

Both in NSW and the UK there has been judicial comment regarding success fees and conditional costs arrangements. The fact of such arrangements and whether a plaintiff has any obligation to pay costs to his or her legal representatives if the claim is dismissed, may be part of the overall considerations in determining whether to make a family provision order ought to dismiss a claim [210] .

Nonetheless, in 2004 in Moore, Young CJ in Eq observed [211]

In various cases including Anderson v Hill [212] and Oxley [213] , Hallen J expressly addressed issues of practice regarding conditional costs agreements. In Oxley, Hallen J stated that

Disclosure obligations are embedded in the Practice Note which requires the costs affidavit of the plaintiff’s solicitor both up to the mediation stage and for the final hearing to state whether there is any uplift factor included in the calculation of the plaintiff’s costs, or any agreement that provides for such an uplift factor, the quantum thereof and the terms of any such fee agreement should be identified [214] .

In December 2024, the UK Supreme Court [215] determined that a court is prevented in the UK [216] from including the payment of an uplift success fee [217] as part of a family provision order which, by other legislative provisions [218] , the plaintiff would not have been entitled to recoup under any “costs order” made in her favour. This highlights that the effect of conditional costs agreements and success fees in assessing family provision orders are obviously dependent upon the specific legislative provisions that apply in each jurisdiction.

Distribution of family wealth whilst thought by some to be a matter of privilege and private choice is recognised as a matter in which society has a legitimate interest. The notion that a State might codify or legislate provisions which impact on testamentary freedom is ancient, with various mechanisms used in Roman law to achieve social objectives regarding testamentary disposition two millennia before the first family provision legislation in the common law world addressed injustices arising from inadequacy of provision [219] .

In the same way as society has recognised that testators may lose a sense of proportion in distributing the estate, giving rise to injustice, there is also recognition that litigants may lose a sense of proportion in expenditure of legal costs in bringing or defending family provision claims.

Family provision law being sourced in statute serves the broader societal purposes striking a balance between testamentary freedom and discretionary curial intervention to address injustices of inadequacy of provision as outlined above.

The Court’s concerns regarding curbing excessive and disproportionate expenditure of costs in family provision litigation have been well-known since before the turn of the century. In 1998, the Court of Appeal in Fiorentini observed [220]

Poche is an example of extreme disproportion of costs to the value of the estate and outcome and represents the classic Pyrrhic victory [221] . The plaintiff’s costs (ordinary basis) and the defendant’s costs (indemnity basis) far exceeded the value of the net cash assets available for distribution and equated to 40% of the value of the total distributable estate [222] The capped costs amount being under 16.5% of his total costs and the amount of his provision and costs ($475,000) left the plaintiff with a massive deficit to the costs he had paid [223] and a shortfall of over $285,000 to the total of his indemnity basis ($760,819.80).

The statutory reforms both in civil procedure and succession law through 2000-2013 formalised, and enhanced, what many judges were already doing to ensure the just, quick and cheap disposition of the real issues in proceedings [224] . The reforms are predicated on and have resulted in a resetting of the role of parties, legal practitioners and the Court in the conduct of family provision litigation and the joint endeavour of each participant in the administration of justice [225] .

Judges (consistent with the statutory reforms and the overriding purpose and objective of just quick and cheap disposition of real issues in the proceedings, at a cost affordable by the respective parties, proportionate to the importance and complexity of the subject-matter in dispute and in accordance with the dictates of justice [226] ) actively manage and oversee proceedings so that forensic choices are not merely or even predominantly left in the hands of the parties [227] . These considerations are applicable to cost capping [228] .

In 2009, the introduction in the family provision Practice Note pro forma affidavit was purposely designed to elicit, at an early stage, essential information necessary to enable determination of family provision claims and, further, to emphasise the economy with which that information is to be given to facilitate the just, quick and cheap resolution of real issues in the proceedings [229] .

Importantly, the changes to the family provision Practice Note in 2013 were further directed to case management at the earliest practicable date allowing prompt mediation to avoid a recurrent issue at the time that when claims came to be mediated costs had become so relatively high that they were prohibitive to settlement. The changes did this by ensuring that there was relatively minimal but nonetheless sufficient disclosure of the nature of a plaintiff’s claim, informal production and exchange of documents and in some cases no immediate requirement for any reply evidence - all directed to parties with minimal cost making early realistic assessment of their respective cases [230] .

Parties have a statutory duty to assist the Court to further the overriding purpose, and to that effect to participate in the case management processes of the Court [231] .

Legal practitioners (and indeed, any person with a relevant interest in the proceedings) must not, by their conduct, cause a party to the proceedings to be put in breach of that duty [232] .

Clearly, as I have noted, there will be an irreducible core of work that will inevitably be required to progress or defend a family provision claim. The intent of the Practice Note is that “focus and economy” [233] is expected of parties and practitioners so that work associated with the simple and measured content of the pro forma plaintiff’s affidavit and the prescribed form of administrator’s affidavit, brief cost estimates and sensibly moderated informal exchange of vital information broadly speaking reflects that “core” and can be prepared at simple cost.

Objective and balanced consideration must be given by litigants and their legal representatives at an early stage prior to commencing proposed claims as to the merits of the proposed application particularly in light of the size of the estate and the likely impact of costs on the distributable estate. This is especially so in small estates [234] or very small estates.

Self-evidently, in cases of very small estates such as this one where the value of the estate is no more than say $100,000 to $150,000, parties and practitioners cannot sensibly incur costs to mediation regularly in the order of $35,000 to $50,000 on each side. Forensic moderation is required.

Sensible conduct of family provision litigation recognises that there should be differences between what is done in preparing and defending cases depending upon the size of the estate and the likely impact of costs. There should be a cost differential such that in simple cases in small estates the essential work done suitably pared and refined so that the costs to carry a matter to mediation on each side should be much closer to $20,000 to $30,000 for each side.

Practitioners giving advice and parties making decisions regarding the conduct of proceedings, must make forensic adjustments as to what work is to be undertaken and at what cost to proportionately balance advancement or defence of claims in light of the size of the estate and the likely impact of costs.

Despite the concerns recited above about the increasing and disproportional costs of family provision proceedings which led to inclusion of SA ss 98(1), (2), (4)(b) and 99(2), the statutory reforms did not include costs capping.

Further, since the commencement of Chapter 3 Succession Act in March 2009, no further statutory capping provisions have been introduced. Thus far, the prospect of cost capping in family provision proceedings particularly in small estates has been left to has been left to the provisions of the Practice Note signalling to practitioners that capping orders might be made, together with comments both judicial and extrajudicial (in seminars and other forums).

In Rogic v Samaan (No 2), Kunc J made orders capping the defendants’ recoverable costs which the plaintiff was ordered to pay. His Honour, by reference to practice in the UK commended consideration of the ordering of a binding costs budget in advance of the conduct of litigation, observing that family provision litigation would especially benefit from such a scheme [235] .

Limited guidance can be gleaned from other jurisdictional areas. Capping orders at interlocutory stages in probate litigation is not infrequent. Whilst there are similarities between the probate and family provision jurisdictions and interlocutory cost capping in the probate jurisdiction is relatively common, there are significant differences between probate claims and family provision claims. The range of outcomes in family provision claims is far less predictable than probate claims where generally speaking the contest is between several testamentary documents or intestacy with the provisions for each Will or on intestacy providing known outcomes depending upon what Will (or intestacy) is ultimately established.

In some respects, property proceedings within the family law jurisdiction, which involve property adjustment according to a defined asset pool and statutory considerations is analogous to the statutory regime that applies within the family provision jurisdiction.

The Joint Select Committee on Australia's Family Law System – Second Interim Report (March 2021) included enquiry as to the financial costs to families of family law proceedings, and options (including costs capping options) to reduce the financial impact, with particular focus on those instances where legal fees incurred by parties are disproportionate to the total property pool in dispute [236] .

Very different views regarding the pros and cons of cost capping were provided by representatives of various stakeholders to the Committee [237] . The Committee considered that the capping of legal costs at a reasonable level for matters only involving the settlement of property would create significant benefits to the family law system [238] .

Some of the Committee recognised that a cap may have unintended consequences, e.g. “fewer practitioners deciding to practice in family law creating a supply shortage; a lack of incentive to settle until the cap is reached; and an incentive to settle once the cap is reached” [239] . Nonetheless the Committee noted that the proposed amendments included certain safeguards against such risks including providing that cap does not include the costs of dispute resolution and for an increase to the cap to be approved by a judge or registrar in exceptional circumstances [240] .

The Committee proposed amendments to the Family Law Act 1975 (Cth) to assist court to effectively case management encourage the resolution of matters and to control excessive costs. The proposed amendments included a provision that would “set the maximum costs and disbursements that a legal practitioner may charge a party to proceedings at $50,000 or 10 per cent of the combined value of the parties’ identified property and superannuation, whichever is the higher” [241] .

The above considerations bearing upon cost capping will likely form part of informed discussion and feedback for those tasked with any future reform of family provision law in NSW.

Prospective costs capping, prophylactic [242] or otherwise, at an interlocutory stage of family provision costs must proceed on a legally principled basis.

What follows is a consideration of costs capping in family provision claims where that is the only relief sought. There are many claims where family provision relief is sought but coupled with other relief claims, such as probate issues, trust claims and other relief based on alleged estoppels. I expressly refrain from particular comment on cost capping in such claims where there are multiple claims for relief. Capping in such cases will need to take into account other considerations including the fact that decisions regarding capping will be influenced by the purpose(s) served in different jurisdictional areas.

Jurisdictionally, UCPR r 42.4 provides a specific and adequate basis to cap family provision costs at an interlocutory stage.

In Sherborne Palmer J commented upon the purposes of CPA s 98 (particularly s 98(4)(a)) and UCPR r 42.4 observing

The recognition evident in s 98(3) that s 98 may be used by the Court in respect of costs “at any stage of the proceedings”, expressly allows the possibility that the power serves different purposes depending on when it is used.

Further to UCPR r 42.4, I consider that the Court’s broad discretionary power under CPA s 98(1)(b) and (3) to make costs orders at any stage of the proceedings specifying by whom, to whom and to what extent costs are paid [243] also provides adequate power to cap costs at an interlocutory stage when considered with and construed in light of the guiding statutory case management principles [244] . This is consistent with a view taken by Slattery J in Allsop [245] . Costs orders pursuant to s 98 at interlocutory stages may be made “subject to further order” or indeed, pursuant to s 86 CPA may be made on such terms and conditions as the Court thinks fit [246] .

Further, I consider that s 99 SA provides another source of power to cap at early interlocutory stages. In Wheatley Ward CJ in Eq in determining to cap and fix an amount of the plaintiff’s costs expressly referenced both s 98 CPA and s 99 SA as sources of power in dealing with questions of costs consequent upon a final hearing of a family provision claim [247] .

However, there is no compelling reason to infer that s 99 SA should be construed as limited to the making of costs only consequent upon the final hearing. In its terms, it expressly provides that the Court may make orders with respect to the costs of such proceedings including costs in connection with mediations. Thus, it would apply even if the claim itself remained unresolved consequent upon a mediation. In light of its purpose, viewed in light of the 2008 legislative history, its text and context [248] , it seems to me that s 99 SA permits the making of a costs capping order during the interlocutory stages of family provision proceedings.

Despite the subsequent submission of Mr Price, there is no pressing need for me to explore the extent of any inherent jurisdiction of the Court to make such an order.

To the extent that there have been concerns in other civil litigation that cost capping or protective costs orders at interlocutory points might inhibit or stymie access to justice, it is not evident to me that that is a particular issue in family provision claims. In any event there is no evidence that there is any such risk in this matter.

Cost capping, when ordered, has been applied at the end of proceedings when the result of the litigation is known. Capping applications at an early interlocutory stage is, as noted, very rare.

Parties should not be surprised at the prospect that that costs capping orders may be made at early interlocutory stages in family provision proceedings. Procedural fairness considerations must be viewed in light of clear signal by the Court, not least by dint of two decades of Practice Notes expressly foreshadowing the prospect of costs capping in such proceedings. In any event as has been observed by Lindsay J [249]

The reason for the absence of prospective cost capping applications in family provision claims is not entirely clear. It cannot really be for the reason of the difficulty of estimating the likely costs to be incurred nor the size of the estate (or property susceptible to being designated as notional estate). Those are matters which by force of the practices that operate in the jurisdiction are required to be estimated and disclosed at an early point of time. It may be as Dal Pont suggests that mindful of the fact that the capping jurisdiction can be exercised at the final hearing, practitioners have generally preferred to wait and see the quantum outcome of the claim.

However, whatever the reason for rare interlocutory applications to prospectively cap family provision costs, it has not been due to the absence of initial [250] and more recent of judicial encouragement that the question should be dealt with at an early stage in proceedings [251] .

The notion that costs capping at an interlocutory stage is inappropriate as lacking certainty or causing confusion, is doubtful and I reject it at least in those terms. On the contrary, I consider that interlocutory cost capping would ordinarily provide the parties and legal practitioners with aspects of certainty to enhance procedural fairness.

To the extent that following a capping order any unfairness might subsequently arise or become evident at the final hearing that can be ameliorated by the express power pursuant to UCPR r 42.4 to vary the capping specification in the event that there are “special reasons”, and it is in the interests of justice to do so [252] , and the Court’s powers under CPA s 98 and SA s 99 to make capping costs on terms and subject to further order on terms, enabling an interlocutory capping order to be revisited or varied consequent upon a final hearing.

Broadly speaking, I accept that case law dealing with capping costs in the context of a final hearing provides some degree of insight and guide informing an approach to costs capping at an interlocutory stage, though not necessarily so. Rather, Delta - CA has made clear that UCPR r 42.4 is a broad discretionary power not subject to implicit limitations. The provisions of s 98 CPA and s 99 SA similarly are not subject to implicit limitations.

The making of a costs capping order at an early interlocutory stages is an evaluative determination. It in many respects is a type of case management exercise as the Court balances various matters including the legitimate interests of the parties.

The considerations that inform an interlocutory cost capping decision are those directly connected with and reflected by the nature of family provision litigation. It includes but is not exhausted by or limited to proportionality as between the costs awarded and the legacy ordered to the plaintiff, the costs incurred and the size of the total estate and notional estate, the costs in the instant litigation on the one hand and on the other family provision litigation of a similar type. Other jurisdictions have embedded in legislation, particular matters that the court may consider in terms of making cost capping orders [253] . However particularly in light of the Court of Appeal’s cautionary comments in Delta - CA I do not consider that it is necessary to have reference to particular criteria in other jurisdictions.

Obviously, the making of costs capping orders in family provision proceedings at or consequent upon the final determination of provision orders where the outcome of the claim in the size of the legacy is known is significant to assessment of whether orders are made in those cases where the issue of capping orders is raised or considered.

By contrast, at early interlocutory stages of family provision proceedings if capping is to be considered, the Court will not know the size of a legacy (if any) awarded to the plaintiff.

In Delta (first instance), the defendant accepted for the purposes of the capping application that the plaintiff had an arguable case in the proceedings [254] . Pain J referenced some authority [255] in which one of the considerations in deciding whether to make a costs capping order at an interlocutory stage under the rules in those jurisdictions was whether the applicant’s claims are arguable and not frivolous or vexatious. On appeal in Delta – CA, Basten J referenced the fact that her Honour had accepted that the proceedings involved a reasonably arguable case [256] and in addressing consideration of her Honour’s assessment of the balancing exercise referenced her Honour’s conclusion that the case was reasonably arguable and that the applicant had acted reasonably in pursuing it as a consideration that there was a sound basis for making the protective costs (capping) order in the amount proposed [257] . Certainly, there is no suggestion in Delta – CA that whether a plaintiff has an arguable case or not is an impermissible or irrelevant consideration. Nonetheless, depending upon the time at which any application is made, the extent of the arguability or strength of the plaintiff’s case may not be able to be meaningfully assessed [258] or only tentatively assessed. In that regard, it may be simply part of the overall evaluative assessment that the court makes at the interlocutory stage.

Further, there is some force to the view that the “overall justice of the case” is unlikely to emerge or in any event be indistinct at an interlocutory stage of the proceedings.

However, in acknowledging the above matters, I do not regard the unknown ultimate outcome of the plaintiff’s claim or limitations that may apply to early consideration of the overall justice of the case as being decisive factors against making a prospective capping order. They are simply matters to be weighed in the balance in making the evaluative determination of whether to make a capping order at an interlocutory stage.

Consistent with case law generally that bears upon costs capping orders and capping orders consequent upon final determination of family provision claims, the Court must be provided with sufficient evidentiary materials with which to make a principled and considered assessment.

The materials that ought to be provided to the Court include the plaintiff’s affidavit in chief, the administrator’s affidavit setting out details of the size of the estate, solicitor’s costs affidavits, and the updated estimate of costs including estimate of costs to final hearing and draft of proposed cost capping orders. Beyond that there is no need to be prescriptive about the materials that might be relevant. In any given case additional materials might or might not include any responsive affidavit to the plaintiff’s affidavit in chief.

Despite the degree of pragmatism and certainty that may commend capping by reference to fixed proportions of an asset pool, or the size of the estate (e.g. in probate cases) which occur at interlocutory stages in some jurisdictions or by reference to the “award/costs parity rule of thumb” on final hearings, there are real difficulties in that applying in family provision proceedings at an interlocutory stage.

One risk, mentioned above, is that family provision cases are a paradigm of case outcomes lacking predictability. A further risk that applies in family provision proceedings is that not infrequently the actual estate of the deceased is small, and the claim has been brought in the context of the prospect of orders being made in relation to “notional estate”. However, within the family provision jurisdiction non-estate property claimed to be the subject of a “relevant property transaction” (e.g. superannuation death benefit proceeds) does not just simply become “notional estate”. There is both detailed consideration and some complexity at least in some cases to orders designating property as notional estate being made.

Ultimately, consistent with the approach that has been taken to capping costs on a final hearing, the evaluative determination must be principled. It should not be determined by fixed percentages or rules of thumb. Rather, the quantum of any costs cap struck on an interlocutory basis is ultimately the result of evaluative determination in which having regard to the nature of the process precision or exactitude is not possible or warranted and there may be a range of appropriate capping outcomes based on the evaluative assessment. The evaluative assessment may in any given case involve a form of “broad-brush approach”.

Because in some cases a capping order might be made only using the UCPR r 42.4 power, it is susceptible to variation on a final hearing where “there are special reasons, and it is in the interests of justice to do so”, it is appropriate that I say something briefly regarding that.

It is fairly common for legislation to confer a power under Court to adopt some course of action if “special reasons” are determined to exist [259] . Care must always be taken in adapting terminology from one statutory context to another as ultimately statutory construction will depend upon the purpose, text, context, coherence and legislative history of the relevant provision [260] .

However, with that important qualification in mind, broadly speaking the tenor of such power is to provide the Court with a broad degree of flexibility not confined by precise definition allowing an assessment to be made of what may be special having regard to the facts of each particular case which might flow from their weight, their quality and combination of factors [261] . In that light, whilst ‘special’ might in some circumstances connote something that is different from the ordinary, it may also connote something that has a distinct or particular character [262] without any requirement that the character be rare or unique [263] .

The expression ‘the interests of justice’ is also commonly used within the law in various legislation including for example cross vesting or other court transfer legislation. Likewise, as has recently been reinforced by the High Court, expressions from one statutory context cannot be readily equated or appropriated to another, even if broadly speaking the general topic from each statutory context is similar [264] .

What can be noted is that the statutory provision that requires the overriding purpose of the CPA and UCPR to be given effect to when the provisions of UCPR r 42.4 are construed [265] and case law bearing upon the proper construction and purposes of UCPR r 42.4 such as Delta - CA, that I have recounted above, will inform the proper construction of the notions of “special reasons” and “interests of justice”.

Further, having regard to the particular nature of final costs orders in family provision proceedings it is evident that the Court will have regard to the “overall justice of the case”, if and when the Court is tasked with considering at a final hearing whether to vary a costs capping order.

Next, to the extent that CPA s 98 and SA s 99 are relied upon to make costs capping orders at early stages (or in any event pre-final hearing determination) of family provision proceedings, those provisions do not contain terms that such an order may only be varied by reference to “special reasons” or specific consideration of the “interests of justice”. However, orders under those provisions may be crafted as I have noted as being “subject to further order” on terms (e.g. pursuant to s 86 CPA).

Nonetheless, if a costs capping order were made at early stages of interlocutory proceedings in reliance upon those (s 86, 98 CPA and s 99 SA) provisions, one might well think that in circumstances where parties had acted upon the fact that such an order had been made and having regard to the overall justice of the case that it would be important for the Court to consider the final outcome of the family provision claim and any relevant or material circumstances that had transpired since the making of the order in considering whether any ultimate variation of such order ought to be made.

Capping orders may well assist in serving proper purposes of the family provision jurisdiction. However, it must be remembered that capping orders of their nature are not a perfect tool or panacea to achieve just outcomes and serve all purposes in family provision claims. Saliently, a particularly extreme and poignant reminder of that was recently noted by the Court of Appeal in Alexiou - CA in which despite costs being partly capped, costs all but devoured the remnant of a deceased’s estate. Free JA observed [266]

Finally, I note that whilst capping in this case is disputed, the Court will be amenable to receiving consent proposals by parties at the interlocutory stages to make costs capping orders. Nonetheless, the Court will not merely make such orders without due consideration.

Overall, I am persuaded that a costs capping order is appropriate at this interlocutory stage.

There is adequate power pursuant to UCPR r 42.4, CPA s 98 and SA s 99.

However, leaving aside the subsequent submission regarding inherent jurisdiction of the Court, the application was based upon UCPR r 42.4 and CPA s 98(4) and contended with by Ms Wilcox on that basis. The terms of CPA s 98(4) in particular focus upon fixing a gross sum of costs as distinct from capping costs. I have made particular comments above regarding the use of CPA s 98(1)(b) and (3), rather than CPA s 98(4). Thus, having regard to the way that the matter was argued, I propose to proceed upon an exercise of jurisdiction under UCPR r 42.4.

Mr Price acknowledged that the effect of such an order if made would (or might) oblige the defendant’s legal representatives to refund the defendant some money already paid for costs [267] .

Broadly speaking, I have had regard to the considerations that I have identified above as being relevant to costs capping at an interlocutory stage as they apply to the circumstances of this case. In particular I have had regard to the factual matters that each of Mr Price and Ms Wilcox have raised as being relevant to whether a capping order should be made. I have considered the matter from the perspective of each of the parties and weighed the respective consequences of making and not making a capping order.

The plaintiff, as a child of the deceased, is an eligible person. The case per se is not of significant complexity.

Nonetheless, having regard to the fact that the estate has been distributed, there will need to be consideration if the case progresses regarding whether it is appropriate to make orders designating any property now held by the defendant as notional estate.

Tentatively, I accept the plaintiff’s claim is not necessarily hopeless and that each side has some strength to their contentions as to the case outcome. However, on any view in light of the size of the deceased’s estate and the impact of costs, the parties ought to deeply reflect on the cost to themselves and the estate as to progression of the litigation.

I reject the submission an interlocutory cost capping order should only be made in “exceptional cases” and that if it was made it would not provide certainty and may cause confusion. I accept this is not a case thus far in which one side has not acted in a way to materially increase the other’s costs, nor have the costs incurred resulted from what might be described as inappropriate behaviour.

The actual costs figures to date show that there is a material disparity between the costs incurred on each side with the plaintiff’s actual costs being more than double the defendant’s costs. In light of my observations above about so-called “standard” family provision costs and the obligation of parties and practitioners to appropriately moderate work that is done in relation to small and very small estates, I consider that the plaintiff’s actual costs, are already to some degree disproportionate to the size of the estate.

I accept that it may be difficult in interlocutory stages to appreciate fully “the overall justice of the case”. However, that consideration may be ameliorated by making any interlocutory cost capping order, “subject to further order”.

Despite the submission that a capping order “may impact on either party’s ability to continue in the proceedings”, there is simply no evidence that either party and more particularly the plaintiff would be stymied by a capping order to such an extent that he would be unable to continue the proceedings.

Contrary to the submission of Ms Wilcox that there is insufficient evidence “to enable the Court to make a logical, fair and reasonable estimate of what would be an appropriate gross sum to incorporate in a costs order”, I consider that there is adequate evidence. I have actual costs details to date and estimates as to costs set out above. I have detail as to the basic nature of the plaintiff’s claim and the financial circumstances of the parties.

By evaluative assessment I consider that a cap slightly in excess of the limit suggested by Mr Price is appropriate, namely that the maximum sum that any party may recover from any other party, or out of the deceased’s estate in these proceedings is specified as $22,500 (inclusive of GST).

Ms Wilcox submitted that a capping order should not be made but rather the parties should be directed to return to mediation/informal settlement conference. I do not see the two as being mutually exclusive. Indeed, I consider that in light of the capping order there is good reason for the parties to return to an informal settlement conference or Court-annexed mediation (which can be had without the costs of a mediator). If it be the case that consequent upon any such settlement conference the parties are able to resolve the matter and seek as final orders some adjustment to the capping order, then that can be considered in light of the then prevailing circumstances.

Lest there be doubt about it, I am mindful of the fact that the plaintiff’s costs estimate include an uplift component in his arrangements with his solicitors. However, even if that component is removed, the plaintiff’s costs are still materially larger than the defendant’s actual costs to date.

In light of Ms Wilcox not disputing proposed orders 1-8, I am prepared to make those orders.

Neither party has suggested that there is any amount that needs to be taken into account pursuant to UCPR r 42.4(2) and accordingly the order that I make will not be limited by that.

Ordinarily, as I have indicated above, the purpose of a capping order is not to impinge upon rights as between an individual party and their solicitors as to costs. However, in light of the proffering by the defendant’s solicitors to limit costs, I am prepared to make a notation (rather than an order) as sought by Mr Price.

As I noted at the outset, no formal order has been made for the defendant to represent the estate of the deceased. Such an order ought to be made.

The orders of the Court are as follows. The Court: