Australia, July 2 -- New South Wales Land and Environment Court issued text of the following judgement:

1. HIS HONOUR: Correctly discerning meaning from text, speech, gestures and other cues is a vital life skill. A smile or a nod between a couple or friends or strangers "exchanging glances" [1] may be all that is needed to convey and receive clarity of intention.

2. However, the frailty of the human condition leads us to frequently only hear what we wish to hear and believe what we wish were true. We are susceptible to "filtering out" the unpleasant and "reading in" the beneficial. Within families, imprecise statements of intention or misconstruction of what is said or written, particularly regarding inheritance of property, has begotten many griefs and spawned much litigation.

3. The plaintiff's assumed meaning of the Will of her father (the deceased) and speech of her uncle (the defendant) was misguided. Her confidence in her own understanding underpinned her delay in commencing family provision proceedings and forestalled early determination of statements regarding benefit for her in the precatory testament of her father and empathetic comments of her uncle.

4. Peter Drucker's remark that "the most important thing in communication is to hear what isn't being said" [2] is apt. What was not "being said" by her father and her uncle was a binding promise of quantifiable provision.

5. It is impossible to know, and now somewhat futile to second-guess, to what extent greater clarity between the parties and understanding on the plaintiff's part might have avoided the outcome of her belated and ill-fated claim for provision.

6. On 24 April 2025, I determined that the plaintiff's application to the Court to claim a family provision order over 12 years out of time should be refused and, accordingly, the plaintiff's summons should be dismissed: Pethers v Pethers [2025] NSWSC 389 (principal judgment or PJ).

7. On the hearing of the application, no particular submissions were made in relation to the costs of the application and I indicated a prima facie view that the costs should follow the event. [3]

8. I ordered, subject to any application by either party seeking an order otherwise, that the plaintiff should pay the defendant's costs of and incidental to the proceedings on the ordinary basis. [4]

9. Within minutes of my Associate emailing to the parties (who appeared by AVL) my reasons for judgment, the plaintiff by email to my Associate requested that "costs should lie where they fall" (plaintiff's costs application). [5] In circumstances briefly described below, each party has now had an opportunity to put forward evidence and make further submissions in relation to costs.

10. Ultimately, I am persuaded that the appropriate order is that the plaintiff should pay the defendant's costs of and incidental to the summons and the application for extension of time on the ordinary basis. Specifically, having regard to the facts of the case and legal principles, I reject the plaintiff's costs application.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197266ca8853909df06feff4)

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