In New South Wales, the court is given a wide discretion as to the award of costs in family provision applications brought under Ch 3 of the Succession Act 2006 (NSW). In exercising the discretion in cases in which the plaintiff’s application has been dismissed, many judges of the Supreme Court of New South Wales are now guided by a number of general principles which Hallen AsJ (as his Honour then was) in Harkness v Harkness (No 2) identified as relevant to the question of costs in unsuccessful family provision applications.
It is clear from these general principles that the current practice of the Supreme Court in such cases is to apply the usual rule as to costs that the unsuccessful plaintiff pay the costs of the successful defendant. While the Court may depart from the usual rule in a particular case, it should not be assumed that it will do so.
A legal practitioner acting for a potential plaintiff in a family provision application should be familiar with these general principles and ensure that the potential plaintiff is properly advised of the risk as to costs in the event that he/ she is unsuccessful in the application. Read further about the general principles here.
