DANIELS v HALL (as Administrator of the Estate of Arnold Edward Daniels) [No 2]

[2014] WASC 272

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Succession
2. › Family provision
3. › Costs
4. › Unsuccessful application by adult child
5. › Whether costs should follow the event
6. › Whether unsuccessful applicant's costs payable from estate
7. › Family Provision Act 1972 (WA), s 14(6)
1. Succession
2. › Family provision
3. › Costs
4. › Executrix's entitlement to costs
5. › Whether personal representative entitled to indemnity costs from estate
6. › Rules of the Supreme Court 1971 (WA), O 66 r 9(2)
1. Practice and Procedure
2. › Costs
3. › Calderbank offers
4. › Rejection of offer more favourable than outcome
5. › Whether indemnity costs should follow
6. › Whether first offer conditional and incapable of acceptance
7. › Whether rejection of second offer unreasonable
1. Practice and Procedure
2. › Costs
3. › Family provision proceedings
4. › Discretionary considerations
5. › Effect of costs order on unsuccessful applicant's financial position
6. › Proportionality of costs to estate

Quick Take

An unsuccessful applicant under the Family Provision Act 1972 (WA) whose claim lacked merit from the outset and who rejected a specific and capable-of-acceptance Calderbank offer will be ordered to pay the defendants' costs on a party and party basis up to the offer's expiry and on an indemnity basis thereafter. A conditional Calderbank offer that was never capable of acceptance does not engage the Calderbank doctrine. The executrix of an estate who properly defends a family provision claim is entitled to all her costs on an indemnity basis from the estate.