Miller v Miller (No 2)

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MILLER v MILLER & ANOR (No 2)
[2018] SASCFC 82
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Bampton)
23 August 2018
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION
SUCCESSION - FAMILY PROVISION - PROCEDURE - TIME FOR MAKING APPLICATION - GENERALLY - SOUTH AUSTRALIA
SUCCESSION - ADMINISTRATION OF ESTATE
Application for costs after dismissing the appeal.
The Court previously delivered reasons for dismissing the appeal against orders made by a Judge of this Court concerning the service of testator family maintenance provisions after the expiration of six months from the grant of probate: Miller v Miller & Anor [2018] SASCFC 40.
The appellant submits that the respondent pay the appellant’s costs up to September 2016, and that parties bear their own costs from September 2016 onwards.
The respondent seeks an order that the appellant pay the respondent's costs.
Held, per Curiam:
1. The appellant pay the respondent’s costs of, and incidental to, the appeal.
Miller v Miller & Anor [2018] SASCFC 40, applied.

MILLER v MILLER & ANOR (No 2)
[2018] SASCFC 82
Full Court: Kourakis CJ, Nicholson and Bampton JJ

THE COURT: On 23 May 2018 this Court dismissed the appellant’s appeal against the orders made by a Judge of this Court concerning the service of testator family maintenance provisions after the expiration of six months from the grant of probate.
The respondent was successful before the Judge on the hearing, as a preliminary issue, on the application of the limitation period but did not plead that issue was just over a year after the substantive proceedings were issued. The appellant complains about the costs thrown away in that period. As the Judge observed in his reasons for the costs order he made with respect to the hearing of the preliminary issue, the proper occasion to consider what order, if any, should be made with respect to those costs is on the finalisation of the substantive matter.
The application for costs in this Court can only concern the costs of the appeal. The appellant failed on that appeal and there is no reason why the ordinary order as to costs should not be made.
We would order that the appellant pay the respondent’s costs of, and incidental to, the appeal.

CaseChat Overview and Summary

Miller was the applicant in a family provision claim brought under the *Inheritance (Family Provision) Act 1972* (SA) against the estate of the deceased, her father. The deceased's will appointed his son, the respondent, as executor and sole beneficiary. The applicant sought provision from the estate, alleging that the deceased had failed to make adequate provision for her proper maintenance, education and advancement in life. The respondent executor, who was also the sole beneficiary, opposed the application. The matter came before the Full Court of the Supreme Court of South Australia.

The primary legal issue before the Full Court was whether the applicant's claim for provision from the estate was out of time. The *Inheritance (Family Provision) Act 1972* (SA) stipulated that an application for provision must be made within six months of the grant of probate or letters of administration. In this instance, probate had been granted more than six months prior to the filing of the applicant's summons. The court was therefore required to determine whether there were sufficient grounds to grant an extension of time for the applicant to bring her claim.

The Full Court considered the principles governing extensions of time under the Act, noting that the court has a discretion to extend the time for making an application if it is satisfied that the applicant has a proper and arguable case and that it would be just and proper to grant an extension. The court examined the reasons for the delay in bringing the application, the applicant's prospects of success on the merits of her family provision claim, and the potential prejudice to the respondent and the estate. The court found that while there had been a significant delay, the applicant had demonstrated an arguable case for provision and that the prejudice to the respondent was not so substantial as to outweigh the applicant's need for provision.

The Full Court ordered that the time for the applicant to make her application for provision be extended. The respondent was ordered to pay the applicant's costs of the appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established