For anyone involved in court proceedings, the final judgment is not the end of the story. Once the arguments are over and the verdict is in, a crucial question remains: who pays the legal bills?
The recent Supreme Court of NSW case of Bushell v George [2025] NSWSC 1347 provides a perfect, real-world example of how a court navigates this tricky question, especially when the results are mixed. Siblings James and Hannah both sued their late father’s estate, but with very different levels of success. The resulting judgment on costs offers valuable lessons for anyone involved in litigation.
Here is a breakdown of the case and the key principles the Court used to decide who should pay for what.
The Story in Brief
The Plaintiffs: James and Hannah, brother and sister, suing their late father Wayne’s estate.
The Claims:
Proprietary Estoppel: Both claimed their father had promised them the family farm, and they had acted on that promise.
Family Provision (Succession Act): Both claimed their father’s will did not make adequate provision for them.
The Result:
James: Lost on both claims.
Hannah: Lost on the estoppel claim but won her family provision claim, receiving a $300,000 top-up from the estate.
With a win, a loss, and a partial win, the parties were worlds apart on who should pay. The Plaintiffs (James and Hannah) wanted the estate to pay most of Hannah’s bills, while the Defendants (the estate) wanted both siblings to pay the estate’s massive legal fees.
The Court's Decision: A Tale of Two Plaintiffs
The Court looked at James and Hannah's situations very differently. Here’s what the Judge decided and, more importantly, why.
1. The Unsuccessful Plaintiff (James): "You broke it, you bought it."
The Outcome: James was ordered to pay 50% of the Defendants' (the estate's) legal costs.
Why? The Principle of "Costs Follow the Event"
The starting point in NSW law is that the losing party pays the winning party's costs. Because James lost everything, the default position was that he should pay.
Why only 50%, and not 100%?
James and Hannah’s claims were related but distinct. They were based on different promises and different evidence. The Court found it was fair to assume the estate’s legal costs were split roughly 50/50 between dealing with James and dealing with Hannah. Therefore, James’s liability should only be for his "share" of the costs.
Why did he have to pay for his unsuccessful Family Provision claim?
James argued a special rule applies in family provision cases: courts are often reluctant to make a loser pay costs if it would worsen their financial situation—the very situation the court considered when dismissing their claim.
The Judge agreed this was a relevant consideration but distinguished James’s case on two grounds:
He wasn’t "fragile": Unlike some plaintiffs who are barely getting by, James had a good income, owned an investment property, and had already received a $600,000 inheritance. A costs order wouldn't make him destitute.
The case was about the promise, not the need: The vast majority of the trial (over 95% of the costs, according to the estate) was spent fighting over whether the father's promises about the farm were made. The argument about James’s financial needs was a minor part of the case. It wouldn't be fair to make the estate pay for the huge cost of defending the failed promise claim.
Lesson for Clients: If you lose, you will likely pay the winner's costs. If your claim is rolled in with another person's, you might only pay a proportionate share. You cannot use a special rule designed to protect the vulnerable if you are not, in fact, vulnerable.
2. The Partly Successful Plaintiff (Hannah): "Success is a matter of perspective."
The Outcome: There was no order as to costs. This means Hannah pays her own legal bill, and the estate pays its own legal bill for her claim.
Why? The Principle of "Overall Justice"
This is the most nuanced part of the decision. Hannah technically "won" because she got a court order for $300,000. But the Judge looked at the reality of the situation:
She lost the main event: She lost her primary case (the estoppel claim), which was the main focus of the trial.
Her win was minor: She only succeeded on a small part of her family provision claim. She had asked for millions to buy a farm, but the Court only gave her $300,000 to meet her immediate living expenses—a result the Judge described as "7.5% of what she was seeking."
The real fight was elsewhere: The estate didn't seriously dispute the evidence about her modest financial needs. The real battle was over the farm, which she lost.
The Court had to balance competing ideas:
On one hand: A successful party should get their costs.
On the other hand: A party who loses on the major issues shouldn't be rewarded.
The Court found the middle ground. Ordering Hannah to pay the estate's costs would be unfair because she did achieve something. But ordering the estate to pay Hannah's costs would be even more unfair, as they had been forced to defend a massive claim (the farm) that failed entirely. The fairest outcome was for everyone to walk away paying their own bills.
Lesson for Clients: Winning a small amount of money doesn't mean you win on costs. The Court will look at the "substance" of the case. If you lose on the big-ticket items that caused most of the legal work, you may not get your costs, and you could even be ordered to pay the other side's costs for those issues.
Key Takeaways for Clients
Success is not a switch, it's a dial. The Court does not just look at who "won" on the final order. It looks at who won on the major issues that took up the court's time and generated the legal fees.
Costs are not binary. A judge can make very specific orders. They can split costs between different parties (as with James) or decide that for one party, the fair outcome is that no money changes hands (as with Hannah).
Offers to settle matter. The judgment noted that while offers were made, they weren't unreasonable enough to trigger a penalty. This is a reminder that making a sensible, formal offer to settle (like a Calderbank offer or an Offer of Compromise) can significantly shift the costs risk onto the other party.
Financial hardship isn't a free pass. While courts will protect genuinely vulnerable people from costs orders that would leave them destitute, this principle won't protect you if you have significant assets or your claim was focused on something other than your immediate financial needs.
The Bushell v George case is a masterclass in the equitable and practical way courts approach costs. It shows that the final decision on who pays the lawyers is often a carefully balanced judgment of its own, designed to achieve a fair outcome based on the real-world conduct and result of the litigation, not just the technical scoreboard.
Disclaimer: This article provides a simplified summary of a legal judgment for informational purposes only and does not constitute legal advice. You should seek professional advice tailored to your specific situation.
