Green & Anor v Ellul & Ors (No 2)

[2018] SASCFC 105

South Australia Full Court

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Interrogate

Catchwords

1. Succession
2. › Family provision
3. › Costs
4. › Unsuccessful applicant
5. › Whether costs should follow the event where claim fails at jurisdictional threshold without determination on merits
6. › Inheritance (Family Provision) Act 1972 (SA), s 8, s 9(8)
1. Practice and Procedure
2. › Costs
3. › Departing from the general rule
4. › Family provision claims
5. › Public policy considerations
6. › Whether costs discretion should be exercised to discourage meritorious claims
7. › Inheritance (Family Provision) Act 1972 (SA), s 9(8)

Quick Take

In family provision claims under the Inheritance (Family Provision) Act 1972 (SA), where a claimant fails at a jurisdictional threshold (such as failure to serve within time) without any determination on the merits, the court may decline to order the unsuccessful claimant to pay the successful party's costs. The mere possibility that the claim was meritorious is sufficient to invoke the public policy against discouraging meritorious claims. The successful party's costs may instead be ordered from the estate on a solicitor/client basis.