Anderson v Anderson (No 2)

[2013] QSC 73

SUPREME COURT OF QUEENSLAND

CITATION:

Anderson v Anderson (No 2)  [2013] QSC 73

PARTIES:

JOHN GORDON ANDERSON
(plaintiff)
v
MALCOLM STUART ANDERSON
(defendant)

FILE NO/S:

4984/10

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

27 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Dalton J

ORDERS:

1.   The defendant pay the plaintiff’s costs of and incidental to this proceeding on a standard basis to be assessed or agreed.

2.   Direct that the executors of the estate of the late Roma Anderson are permitted to deduct any monies owing pursuant to my costs order (above) before paying any monies to the defendant as beneficiary of that estate.

COUNSEL:

APJ Collins for the plaintiff
G Coveney for the defendant

SOLICITORS:

Quinn and Scattini for the plaintiff
Radcliff Taylor Lawyers for the defendant

1. This is a decision on costs arising from submissions made after my delivery of judgment in the proceeding on 22 February 2013.  The proceeding was brought by one brother against his only sibling in relation to their deceased mother’s transfer of the family home (her major asset) to the defendant at a time when she was elderly and infirm.  The proceeding was brought on the basis that the transfer was vitiated either by a lack of capacity on the part of the mother, or that it had been brought about by the undue influence of the defendant upon his mother.  The plaintiff was successful.  I made a finding that there was an antecedent relationship of influence[1] between the defendant and his mother and that the defendant had not shown that the transfer was voluntary.  Nonetheless, the defendant contends that the plaintiff ought not have his costs of the proceedings.  The defendant proposes that I ought to make no order as to costs.

   [1]Johnson v Buttress (1936) 56 CLR 113, p 138 per Dixon J.

1. The starting point for an award of costs must be UCPR 681(1), which provides that costs of a proceeding are in the discretion of the Court, but follow the event, unless the Court orders otherwise.

1. The defendant relies upon errors and defects identified in the plaintiff’s lawyers’ conduct of the matter as a reason why the plaintiff ought not have his costs.  The first defect identified was that the plaintiff commenced the proceedings in his personal capacity.  The proceedings were for declarations in relation to the impugned transfer.  The plaintiff relies on Scallan v Scallan[2] for the proposition that the plaintiff had no standing to commence the proceedings, at least so far as they relied upon undue influence, and that the proceedings ought to have been commenced by or on behalf of the estate.  I am not entirely convinced that the plaintiff had no standing to seek declarations, he was after all a person affected by the disposition in his character as a beneficiary of his mother’s will.  Nonetheless, I am content to proceed on the basis that the estate was a necessary party to the proceeding because it…