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On 14 September 2023, the Court of Appeal of South Australia delivered its judgment in Bramwell v Bramwell & Ors [2023] SASCA 94, dismissing the appeal on all grounds.

At first instance,[1] the trial judge Auxiliary Justice Bochner awarded the respondent on appeal substantial further provision, together with her costs on the higher solicitor/client basis.

In unanimously dismissing the appeal, the Full Court held that:

1. the deceased owed a strong moral duty to the respondent and the trial judge’s determination as to further provision was within the range for awards that might reasonably have been made;
2. it is appropriate for the Court to have regard to broad considerations as to costs in family provision claims, including the public policy objectives underpinning the “remedial” legislation, (noting it is undesirable that an applicant with an otherwise meritorious clam be discouraged by the prospect of a gap between their actual costs and recoverable costs), the size of the estate, the likely effect of a solicitor/client costs order on the parties and the residuary beneficiaries, the parties’ conduct during the litigation and any offers exchanged; and
3. in the circumstances, the trial judge did not err in exercising her broad discretion under section 9(8) of the Inheritance (Family) Provision Act 1972 (SA) to award solicitor/client costs to the respondent.

In coming to this determination, the Court of Appeal also noted that to the extent that historically there have been references in family provision matters to an award of costs on a solicitor/client basis to a successful applicant as a “standard order”, that terminology is not apt and should no longer be used.

Piper Alderman’s Private Client Services Team including Partners Donna Benge and Rod Jones along with Senior Associate, Sam Morphett worked on this matter.

The full judgment can be read here.

[1] See Bramwell v Bramwell & Ors [2022] SASC 12 & Bramwell v Bramwell & Ors (No. 2) [2022] SASC 76

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