ADT v LRT (No 2) - [2014] QSC 188

SUPREME COURT OF QUEENSLAND

CITATION:

ADT v LRT (No 2) [2014] QSC 188

PARTIES:

ADT
(applicant)
v
LRT
(respondent)

FILE NO/S:

SC No of 2014

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

18 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Flanagan J

ORDER:

1. The applicant’s costs of and incidental to the proceeding be assessed on an indemnity basis and be paid out of the assets of the testatrix.

2. The respondent’s costs of and incidental to the proceeding including any reserved costs, be assessed on an indemnity basis and be paid out of the assets of the testatrix.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where the applicant was successful in proving that a proposed codicil (with amendments) was, or may have been, an alteration the testatrix would have made to her will – where the respondent was ultimately successful in opposing the granting of leave pursuant to s 22 of the Succession Act 1981 – where the granting of leave would not have been appropriate as any order pursuant to s 21 may have had the effect of reducing the pool of assets available for pending family law settlement proceedings – whether either or both parties should have their costs paid out of the assets of the testatrix on an indemnity basis – whether the costs ought to be assessed

Succession Act 1981 (Qld), s 21, s 22, s 24(d), s 24(e)

Re: Keane; Mace v Malone (No 2) [2011] QSC 98, cited

COUNSEL:

R D Williams for the applicant

R M Treston QC for the respondent

SOLICITORS:

Merthyr Law for the applicant

Phillips Family Law for the respondent

On 6 August 2014 I gave judgment in this matter. I refused the applicant’s application for leave under s 22 of the Succession Act 1981 (“the Act”) to apply for an order under s 21 of that Act. On that occasion I gave a preliminary indication that an appropriate order as to costs may be that both of the applicant’s and respondent’s costs be paid out of the assets of the testatrix on an indemnity basis. The parties have now provided written submissions as to costs.

The applicant seeks the following orders:

(a) That the applicant’s costs of and incidental to the proceeding on an indemnity basis be paid out of the assets of the testatrix.

(b) That the respondent’s cost of and incidental to the proceeding including any reserved costs except in respect of the hearing on 10 July 2014, be assessed on the standard basis and be paid out of the assets of the testatrix.

(c) That the respondent pay the applicant’s costs of and incidental to the hearing on 10 July 2014 on an indemnity basis.

The respondent agrees that the applicant’s costs of and incidental to the proceeding should be paid out of the assets of the testatrix on an indemnity basis. The respondent however submits that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ADT v LRT (No 2)

Details

AGLC: ADT v LRT (No 2) [2014] QSC 188
Case: [2014] QSC 188
Decision Date: 18 August 2014

CaseChat Overview and Summary

The case of ADT v LRT (No 2) involved a dispute regarding the interpretation of a proposed codicil to a will. The applicant, ADT, sought to establish that the codicil, with certain amendments, was or may have been an alteration the testatrix would have made to her will. The respondent, LRT, opposed the granting of leave for the codicil's implementation under section 22 of the Succession Act 1981, asserting that such an order could potentially reduce the assets available for pending family law settlement proceedings. The case came before the court to determine whether the costs of both parties should be paid from the testatrix's estate on an indemnity basis and to assess the costs accordingly.

The primary legal issue before the court was whether the costs of both the applicant and the respondent should be borne by the testatrix's estate on an indemnity basis. This was contingent on the court's determination of the appropriateness of granting leave for the codicil, considering the potential impact on the family law settlement proceedings. The court had to balance the applicant's success in proving the codicil's validity against the respondent's successful opposition to the granting of leave, which ultimately safeguarded the estate for the benefit of the family law proceedings.

The court ruled that both parties' costs should be paid from the testatrix's estate on an indemnity basis. The applicant was successful in proving that the codicil, with amendments, was an alteration the testatrix would have made, but the respondent's opposition to the granting of leave was justified as it protected the estate from being prematurely reduced for the family law proceedings. The court found that the costs should reflect the importance of the proceedings for both parties and the necessity of safeguarding the estate.

The final orders of the court were that the applicant's costs were to be assessed on an indemnity basis and paid from the testatrix's estate, and similarly, the respondent's costs, including any reserved costs, were also to be assessed on an indemnity basis and paid from the same estate. This decision ensured that both parties were compensated for their efforts while maintaining the integrity of the estate for the ongoing family law matters.

Orders

Orders of the court

1. The applicant’s costs of and incidental to the proceeding be assessed on an indemnity basis and be paid out of the assets of the testatrix.

2. The respondent’s costs of and incidental to the proceeding including any reserved costs, be assessed on an indemnity basis and be paid out of the assets of the testatrix.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	ADT v LRT (No 2) [2014] QSC 188
PARTIES:	ADT (applicant) v LRT (respondent)
FILE NO/S:	SC No of 2014
DIVISION:	Trial Division
PROCEEDING:	Originating Application
DELIVERED ON:	18 August 2014
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGE:	Flanagan J
ORDER:	1. The applicant’s costs of and incidental to the proceeding be assessed on an indemnity basis and be paid out of the assets of the testatrix. 2. The respondent’s costs of and incidental to the proceeding including any reserved costs, be assessed on an indemnity basis and be paid out of the assets of the testatrix.
CATCHWORDS:	PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where the applicant was successful in proving that a proposed codicil (with amendments) was, or may have been, an alteration the testatrix would have made to her will – where the respondent was ultimately successful in opposing the granting of leave pursuant to s 22 of the Succession Act 1981 – where the granting of leave would not have been appropriate as any order pursuant to s 21 may have had the effect of reducing the pool of assets available for pending family law settlement proceedings – whether either or both parties should have their costs paid out of the assets of the testatrix on an indemnity basis – whether the costs ought to be assessed Succession Act 1981 (Qld), s 21, s 22, s 24(d), s 24(e) Re: Keane; Mace v Malone (No 2) [2011] QSC 98, cited
COUNSEL:	R D Williams for the applicant R M Treston QC for the respondent
SOLICITORS:	Merthyr Law for the applicant Phillips Family Law for the respondent