The dicta in Caska v Caska should not be treated as establishing any general principle that provision should be denied because it would benefit creditors rather than the applicant personally. A financial benefit that pays off creditors, saves assets from foreclosure, or reduces ongoing liabilities does not diminish the benefit to the applicant. The question of whether actual insolvency (as opposed to indebtedness) might justify declining provision was left open. Section 33 of the Family Provision Act 1982 (NSW) operates as a substitute for the general costs power and is not constrained by the rule that costs ordinarily follow the event.
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