Baker v Baker (No 2)

[2019] QDC 140

DISTRICT COURT OF QUEENSLAND

CITATION:

Baker v Baker (No 2) [2019] QDC 140

PARTIES:

KENNETH NOEL BAKER
(first applicant)

and

MARK KENNETH BAKER
(second applicant)

v

WAYNE NOEL BAKER and HAYDEN KENNETH BAKER as executors of the will of GWENDA DAWN BAKER (deceased)
(respondents)

FILE NO/S:

D3793/17

DIVISION:

PROCEEDING:

Family provision application - costs

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

14 June 2019

DELIVERED AT:

Brisbane

HEARING DATE:

14 June 2019

JUDGE:

Judge McGill SC

ORDER:

Order by consent that the costs of the applicants fixed at $[figure] be paid out of the estate of the deceased.  Order that the costs of the respondents, excluding the costs in respect of the preparation, filing and service of [five specified affidavits], on the standard basis, be paid out of the estate of the deceased.    

CATCHWORDS:

TESTATOR’S FAMILY MAINTENANCE – Application of spouse and adult son - estate to other son and grandson – small estate – costs – litigation not conducted efficiently – issues not confined – executors’ costs limited. 

Succession Act 1981 s 41.

UCPR r 700A. 

Sweaney v Bailie [2017] QDC 295 – followed.

COUNSEL:

RD Williams for the applicants
AM Laylee for the respondents

SOLICITORS:

James and Co Lawyers for the applicants
CSG Law for the respondents

1. In this matter there was a family provision application tried in early April 2019 before me.  Last week, on 7 June, I delivered a reserved judgment, but left the question of the costs of the parties to the proceeding for further submissions.  There were a number of matters which concerned me about the way the proceedings had been carried on.  These were discussed over several paragraphs of my previous judgment, and I do not propose to repeat them here. 

1. The position in relation to the costs of family provision applications was discussed by another Judge of this Court in the matter of Sweaney v Bailie [2017] QDC 295, from paragraph [26]. I think it is sufficient for present purposes to say that I entirely agree with everything that was said in those reasons about the legal position, and in particular, I agree with the proposition that rule 700A of the Uniform Civil Procedure Rules applies to both parties, or, if necessary, all parties, in relation to family provision litigation

1. The submissions for the applicant draw attention to a proposition in a textbook[1] that in family provision proceedings, the general rules as to assessment do not apply, and that an applicant is entitled to a complete indemnity for costs, and a personal representative is entitled to costs on the indemnity basis.  I have not actually looked at the book, but if that is the effect of what is said in that textbook, in my view that statement is quite wrong.  There is no reason why the ordinary rules about assessment of costs in the UCPR would not apply to any costs ordered to be paid in favour of an applicant, and it is also the case that there…