The recent case of Ryan v Zekas  WASC 124 (S) sets out the factors which the Supreme Court may take into account when exercising its discretion to award costs.
The Supreme Court has a wide discretion to award costs under section 37 of the Supreme Court Act 1935 (WA) (Act). However, the discretion must be exercised judiciously and is not ‘unfettered’.
The general rule is that costs should follow the event – in other words, the ‘successful’ party should recover their costs from the opposing party.
The general rule is, however, subject to exceptions. In Ryan v Zekas Justice Hill referred to the following passage from the Court of Appeal’s decision in Strzelecki Holdings Pty Ltd v Jorgensen  WASCA 96:
What constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case. The Court may depart from the general rule that costs follow the event and modify a costs order to take into account matters such as any unreasonable conduct of a generally successful party, or to the failure of that party on one or more specific issues… 1
The general rule noted above is not invariably applied in FPA proceedings. Section 14(6) of the FPA deals with costs and empowers the court to make an order as to the costs of any proceeding under the FPA as it deems just.
An order that a successful applicant’s costs should be paid out of the estate is not uncommon in FPA proceedings. The reason for this, as Hill J noted, is that the court when exercising its power to make an order as to costs, is “not enforcing the applicant’s rights but involves a consideration as to whether the testator made adequate provision for a particular applicant”.
However, the general policy of the court with respect to FPA cases is that the costs of proceedings are to be borne by beneficiaries or claimants who were unsuccessful in the proceedings.
In the substantive proceeding (Ryan v Zekas  WASC 124), the plaintiff Mr Ryan applied for an order under the FPA that adequate provision be made for his proper maintenance and support from the estate of Ms James – with whom he claimed he was in a de facto relationship at the time of her death.
Mr Ryan and Ms James had been living together at a property in Sorrento (Sorrento property) which they owned together as tenants in common.
Ms James made no provision for Mr Ryan in her Will. She left her younger son (the third defendant) a property she owned in Menora, and the remainder of her estate to both her sons (the second and third defendants). The remainder of her estate included her share in the Sorrento property.
After a lengthy analysis of the evidence, Hill J found against the defendants and awarded one half of the deceased’s share in the Sorrento property to Mr Ryan.
Her Honour held that an award of one half of Ms James’ interest in the Sorrento property under the Will would be adequate provision for Mr Ryan and enable him to purchase another property, whilst still respecting Ms James’ wish that her sons would have a share in the property.
Mr Ryan did not obtain the order he sought for the transfer of the entirety of Ms James’ share in the Sorrento property and the repayment of a $149,000 loan unrelated to the Sorrento property.
Mr Ryan sought a special costs order that the defendants pay his costs of the proceeding fixed in the sum of $130,791.15.
The defendants submitted that:
The defendants submitted in the alternative that:
The costs which may be recovered for work done by solicitors is, generally, limited by subsidiary legislation known as ‘costs determinations’. These determinations set maximum amounts that can be recovered for legal fees. A court or judicial officer has the power to award a special costs order under section 280(2) of the Legal Profession Act 2008 (WA) (LPA). In practice, this can be done in a number of ways, such as by removing limits on costs fixed by the costs determination or by fixing higher limits.
The exercise of this power requires:
‘Unusual’ does not qualify ‘complexity’ or ‘importance’, only ‘difficulty’. The court will have regard to the ‘usual run of civil cases determined by the court’ when assessing ‘unusual difficulty’, and the court essentially makes a value judgment.
‘Importance’ relates to the significance of the issues that arose in the litigation; this can be either significance to be to the parties, prospective parties or to the public or community generally.
Ordinarily, the court would direct that the amount of costs claimed by the successful party are to be assessed (subjected to taxation) by the taxing officer of the Court.
However, to avoid further argument, the parties asked Hill J to fix the costs of the proceedings. Her Honour did so, referring to the simplicity of the orders sought, the fact the parties had made submissions on the issue, and her familiarity with the case.
Her Honour held that the defendants should pay the plaintiff’s costs of the proceedings, fixed in the sum of $100,580.05 and made the special costs orders claimed under s 280(2) of the LPA by lifting the limits sets by the relevant costs determination.
Her Honour was of the opinion that the amount of costs otherwise allowable to the plaintiff under the costs determination would be inadequate because:
The issue of costs can be complex and ought to be carefully considered prior to the commencement of any proceeding.
As illustrated above, ‘success’, ‘importance’, and ‘complexity’ are all factors which may affect a party’s entitlement to costs.
 Ryan v Zekas  WASC 124 (S) .