Robinson v Glennon (No 2)

1. [1]

   I delivered reasons in these proceedings on 17 July 2025: see Robinson v Glennon [2025] NSWSC 770. These reasons assume familiarity with those reasons. They concern the appropriate form of final orders, including in relation to costs.

Costs

1. [2]

   In my earlier reasons, I concluded that Ms Robinson’s application will succeed (at [99]).

2. [3]

   I expressed the preliminary view (at [100]) that Ms Glennon, who is the defendant and administrator of the estate, should:

3. [4]

   Ms Robinson accepts that Ms Glennon should be reimbursed on an indemnity basis from the estate for steps undertaken to secure and perform the administration of the estate (excluding the litigation with Ms Robinson). There is no suggestion that these costs have not been properly and reasonably incurred by Ms Glennon. They should be borne by the estate. Ms Robinson contends that Ms Glennon should not otherwise have any costs order in her favour. Ms Robinson does not seek a costs order in respect of her own costs.

4. [5]

   Ms Glennon submits that in addition to reimbursement for steps undertaken to secure and perform the administration of the estate, the Court should order that she should have her costs of the proceedings out of the estate, calculated on the indemnity basis, but capped at $110,000 (including GST).

5. [6]

   For the reasons set out below, I have concluded that Ms Glennon should be entitled to recover $50,000 (including any GST) on account of legal costs associated with the proceedings out of the estate. She should also recover the other (undisputed) expenses associated with the administration of the estate.

6. [7]

   There are many cases that address the many considerations that can arise when coming to exercise the discretion about making a costs order in family provision cases. Such cases “raise different issues with respect to costs” compared with other proceedings: see Salmon v Osmond [2015] NSWCA 42; 14 ASTLR 442 at [172]; Haertsch v Whiteway (No 2) [2020] NSWCA 287 at [5]. Section 99 of the Succession Act 2006 (NSW) empowers the Court to order that the costs of proceedings be paid out of the estate in such manner as the Court thinks fit. The costs of family provision proceedings are to be determined by the overall justice of the case: Singer v Berghouse [1993] HCA 35; 67 ALJR 708 at 709. It has been acknowledged that the “overall justice” is not remote from costs following the event: Jvancich v Kennedy (No 2) [2004] NSWCA 397 at [11] per Giles JA (Handley and McColl JJA agreeing). The general rule that costs follow the event continues to apply in family provision proceedings, however, it applies with greater than usual liberality and discretion in considering whether to depart from it: Salmon v Osmond at [174]; Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [26]-[27].

7. [8]

   The present case concerns the costs incurred by an administrator who has unsuccessfully defended a case concerning an application for a family provision order. A useful starting point is the general rule expressed in Nobarani v Mariconte (No 2) [2018] HCA 49; 92 ALJR 1031 at [2] (footnotes omitted):

8. [9]

   The question of whether litigation expenses are recoverable may depend on the underlying character of the litigation. In Pang v Fong (No 2) [2014] NSWSC 1924, Robb J observed (at [51]):

9. [10]

   I was taken at trial to Wang v D’Ambrosio [1999] NSWSC 227. That case, in part, concerned an application in favour of an executor on the usual trustee or indemnity basis. In my earlier reasons at [86], I quoted the following passage from the reasons of Hodgson CJ in Eq (at [76]):

10. [11]

    In this case, there was no will and Ms Glennon was not an executor. She was an administrator pursuant to letters of administration granted on 16 May 2025 (which was after the proceedings were commenced and not long before they were heard). Ms Glennon was not defending a will. She did not have the same positive duty that is imposed on an executor. The reality is that she volunteered to act as administrator and the principal thing she was defending in the litigation was her right to obtain the whole of Mr Baxter’s estate pursuant to the intestacy provisions in the Succession Act (see my earlier reasons at [92]). In defending the proceedings, she was acting in her own interests and was not representing anyone else.

11. [12]

    It is also true, however, that Ms Glennon stepped into the role of administrator to perform the necessary task of administering her brother’s estate. In terms of the application for a family provision order by Ms Robinson, it was not unreasonable or improper for Ms Glennon to incur some expense in connection with the (putative) administration of the estate to be satisfied that the application was bona fide and had some basis. At that point, Ms Glennon should be taken to have appreciated that the litigation was essentially a contest between herself and Ms Robinson. It concerned only the personal interests of those two people.

12. [13]

    There was evidence at trial about a settlement offer made by Ms Glennon to Ms Robinson on 26 November 2024, being an offer of 50% of the net estate, including the value of the Subaru motor vehicle. Ms Glennon accepted that Ms Robinson “may have fared better… as a result of the judgment”. The offer does not support an application for costs in accordance with the usual principles that apply when a party obtains a judgment that is more favourable to them than the terms of a settlement offer made by that party. It does, however, demonstrate that Ms Glennon did not approach the proceedings in an uncompromising way. The offer was a significant one. I do not conclude that Ms Robinson acted unreasonably in refusing to accept it. However, if it had been accepted, a considerable amount of legal expense would have been avoided. The fact of the offer can weigh in the balance in my exercise of discretion on the basis that it demonstrates a willingness on Ms Glennon’s part to engage on a constructive basis to seek to resolve the matter.

13. [14]

    There was a mediation in September 2024. Ms Robinson attended the mediation with her solicitor and counsel. In July 2024, Ms Glennon’s solicitor estimated that Ms Glennon’s expected costs up to and including the mediation were $48,000 (including GST). Ms Glennon incurred substantial costs after the mediation failed. The evidence is that the total costs on the file on Ms Glennon’s side total $136,742.71 (including GST), comprising:

14. [15]

    Ms Robinson submitted that these costs were excessive, particularly having regard to the size of the estate. There have been many cases that express concern about costs in family provision cases, especially where the estate is small, see for example: Geoghegan v Szelid [2011] NSWSC 1440 at [23]-[25]; Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 at [172]-[173]; Shelley v Prager (No 2) [2020] NSWSC 1553 at [41]-[42]. The Court expects litigants and lawyers to be vigilant about the need for legal costs to be proportionate to what is at stake.

15. [16]

    I am not prepared to comment adversely on the legal costs incurred by Ms Glennon. There was some reasonably detailed evidence, many documents produced on subpoena and a mediation. The case ran for 3 days. The longest cross-examination was that of Ms Glennon. The case would probably have been completed in 2 days but for some apparent irregularities in the preparation of Ms Robinson’s sole affidavit, which meant that part of the first day was aborted. Apart from that, the trial was conducted efficiently. There were several interlocutory hearings. Ms Glennon incurred additional expense because Ms Robinson (when she was self-represented) failed to attend some interlocutory hearings. Ms Robinson was entitled, of course, to act for herself but that decision undoubtedly resulted in additional legal expense for Ms Glennon. For example, Ms Glennon’s lawyers prepared the Court Book without any input or assistance from Ms Robinson. In short, Ms Robinson’s decisions and conduct was a reason for some of the legal expense incurred by Ms Glennon.

16. [17]

    A significant part of the costs Ms Glennon incurred should be seen as costs incurred by her to pursue litigation for her own benefit, being the whole of Mr Baxter’s estate under the intestacy rules. Having failed, she should bear the majority of those costs. Parties should not assume that litigation can be pursued safe in the belief that costs will always be paid out of the estate: Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 at [27].

17. [18]

    I consider, however, that some allowance for costs in Ms Glennon’s favour should be made in recognition of the following matters:

18. [19]

    I have come to the conclusion that Ms Glennon should recover $50,000 (including any GST) from the estate on account of her costs of the proceedings. The figure of $50,000 is not drawn from a detailed or mechanical consideration of the costs incurred by Ms Glennon (which cannot be undertaken on the material before me and would require more steps to be taken and more costs to be incurred). I have instinctively weighed the considerations I have identified to arrive at that figure. An important consideration is that after the mediation failed, Ms Glennon should have been in a position to appreciate that the litigation was bona fide and she was defending the proceedings for her own benefit. At that time, her costs were likely to have been in the order of $48,000. I consider that $50,000 (including GST) is an appropriate sum to give recognition to the matters identified in (a) to (c) in the previous paragraph.

19. [20]

    At trial, counsel for Ms Robinson submitted that in relation to the “vexed” question of costs, “it would be reasonable to allow something for costs”. That position hardened in the submissions on costs made after my reasons were delivered, but I consider that the submission at trial should be accepted, and that the reasonable amount to allow for costs is $50,000.

20. [21]

    The amount of $50,000 is not intended to punish Ms Glennon’s lawyers and I do not suggest that a larger amount could not reasonably have been incurred in legal expenses. I am not capping the costs that her lawyers can charge. Rather, I am making an order (similar to that made in Sarant v Sarant (No 2)) that Ms Glennon, as administrator of the estate, that has the effect that Ms Glennon cannot recover all of her costs of the proceedings from the estate. That is because the proceedings were principally defended, unsuccessfully, by Ms Glennon for her own benefit, rather than for the benefit of the estate.

21. [22]

    Shortly after I delivered my reasons, I received correspondence from City Lawyers and Consultants. That firm once acted for Ms Robinson in these proceedings but ceased to do so some time in about February 2025. The firm indicated that it wished to make an application for an order for costs to be paid to the firm by Ms Glennon out of the proceeds of sale of the Tyndale property, such fees to be capped at $60,000 (including GST). Although notionally the proposed costs order was against Ms Glennon, any costs to be paid out of the estate will, as a matter of substance, be paid by Ms Robinson. I gave City Lawyers and Consultants an opportunity to make submissions in support of its proposed application and received an affidavit of Ms Lana Ventsov, affirmed on 25 July 2025.

22. [23]

    Ms Robinson submitted that the dispute between her and her former lawyers is a contractual dispute that should not be resolved in this Court. Given the position taken by Ms Robinson, in opposing any orders for costs in favour of her former lawyers, it is plain that it is not appropriate to make any order as to the former lawyer’s costs. City Lawyers and Consultants is not a party to these proceedings. It should not be permitted to agitate in these proceedings a claim that is effectively against and contrary to the interests of its former client. The claim would involve exploring factual issues, that may be in contest, as between Ms Robinson and City Lawyers and Consultants. That cannot and should not be done as part of the consideration of orders to be made flowing from my reasons in these proceedings.

23. [24]

    City Lawyers and Consultants submitted that the application is consistent with the practice of the Court. The only decision cited to support the practice was Alexiou v Alexiou [2024] NSWSC 1340 (upheld at [2025] NSWCA 164). That decision does not support the proposition that the Court is in the practice of resolving a dispute between a litigant and their former lawyers in the context of addressing the question of costs orders to be made in connection with an application for a family provision order.

24. [25]

    I decline to entertain the application by City Lawyers and Consultants in these proceedings. If the firm wishes to pursue a contractual claim for fees against its former client, Ms Robinson, it must do so in properly constituted proceedings.

Other orders

1. [26]

   That leaves the question of orders necessary to give effect to my reasons.

2. [27]

   Ms Glennon (or her lawyers) have incurred expenses that are properly expenses of the estate and which should be recovered on a full indemnity basis. They include:

3. [28]

   As I noted in my earlier reasons, the Tyndale property remains subject to a mortgage. As at 10 March 2025, the loan to the mortgagee was in arrears in the amount of $31,579.71. I was told at a directions hearing that the administrator was considering selling the Subaru motor vehicle to assist in meeting the estate’s obligations under the mortgage. I do not know if that has occurred. I have also been informed that on 2 September 2025, BCU Bank, the mortgagee, indicated to Ms Glennon’s solicitors that it intended to take steps to enforce its rights under the mortgage.

4. [29]

   It was submitted for Ms Robinson that the appropriate orders would entail the Tyndale property being transferred to her, provided she caused the mortgage to be simultaneously discharged. She contemplated that she would then have an opportunity to pay the administrator’s costs and expenses (calculated to be $18,129.30) within 90 days, which would mean she would have an opportunity to retain the property. Her orders contemplated that if she was unable to cause the mortgage to be discharged or pay Ms Glennon’s administration costs, there would be a process for the sale of the property, with the proceeds to be used to discharge the mortgage, pay Ms Glennon’s administration costs and provide the balance to Ms Robinson.

5. [30]

   In provisional orders propounded for Ms Glennon, it was proposed that the Tyndale property was to be sold and the proceeds used to discharge the mortgage and Ms Glennon’s costs, with the balance paid to Ms Robinson. The orders did not specify the process for sale.

6. [31]

   I have concluded that the proposal for the Tyndale property to be transferred to Ms Robinson and payment to Ms Glennon of her legitimate costs only after 90 days is not appropriate. Ms Glennon should not be out of pocket for that long. Unless the mortgagee has pre-empted matters, the orders I would make to give effect to the administration of the estate and the making of a family provision order would see the Tyndale property sold by Ms Glennon as administrator of the estate, with the proceeds to be used to: (1) discharge the mortgage; (2) reimburse the administrator for the identified costs of administration (including the costs associated with the sale of the property); and (3) pay $50,000 in respect of Ms Glennon’s costs of the proceedings. The balance should be paid to Ms Robinson. There should also be arrangements for the Subaru motor vehicle to be transferred to Ms Robinson (assuming it has not already been sold).

7. [32]

   I had hoped to be able to make final orders without the need for further submissions from the parties. I am conscious of seeking to minimise the parties’ costs (see also my earlier reasons at [102]). However, it is difficult to do that without knowing the status of any steps taken by the mortgagee, or knowing whether the Subaru motor vehicle has been sold. The steps to be taken to effect a sale of the property will need to be carefully calibrated. Without intending any criticism of Ms Glennon’s solicitor (and none was suggested by Mr Livingstone), there have been events associated with the proceedings that mean personal interactions between him and Ms Robinson is best avoided. If that results in some additional costs being borne by the estate, that cannot be avoided.

8. [33]

   Ms Robinson would remain free to seek to come to a commercial arrangement that could see her retain the Tyndale property. On the evidence at trial, her financial ability to do so seems highly unlikely. If Ms Robinson is somehow able to secure sufficient funding to: (1) discharge the mortgage; (2) reimburse Ms Glennon’s administration costs; and (3) reimburse Ms Glennon $50,000 on account of her legal fees in the proceedings, then I would be willing to contemplate an order that any proposed sale of the Tyndale property be halted upon payment of those amounts.

9. [34]

   If the property has to be sold, no doubt Ms Robinson will be disappointed. But it will have to occur because Mr Baxter did not prepare a will before he died and also because the Tyndale property is subject to a mortgage supporting an outstanding loan that is otherwise beyond the means of the estate (allowing for the usual costs of administering an estate) and Ms Robinson.

10. [35]

    The result is that I do not propose to make the machinery orders proposed by Ms Robinson. Ms Glennon has not provided detailed machinery orders. Assisted with these reasons, I expect the parties should be able to provide to my Associate appropriate machinery orders. Hopefully they can be agreed. If not, the parties should provide competing orders with submissions (limited to 3 pages) supporting their proposed orders.

Orders

1. [36]

   I make the following orders:

   1. (1)

      The parties are to exchange proposed orders to dispose of the proceedings within 7 days.

   2. (2)

      In the event the parties can agree on proposed orders, those orders are to be provided to my Associate.

   3. (3)

      In the event the parties cannot agree, then within a further 7 days after the time allowed for in (1), the parties are to provide to my Associate the orders proposed, to be accompanied by submissions not exceeding 3 pages.