Baldwin v Greenland

[2006] QCA 424

SUPREME COURT OF QUEENSLAND

CITATION:

Baldwin & Anor v Greenland [2006] QCA 424

PARTIES:

ROBYN JUNE BALDWIN and CHRISTOPHER CHARLES NEALE
(applicants/respondents)
v
BRUCE WILLIAM GREENLAND
(respondent/appellant)

FILE NO/S:

Appeal No 10796 of 2005
SC No 9105 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal - Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 11 August 2006
Further Order delivered 27 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

22 May 2006

JUDGES:

McMurdo P, Jerrard JA and Helman J
Further Order of the Court

ORDER:

1.    Appellant to pay respondents' costs of the appeal to       be assessed on the standard basis
2.    The difference, if any, between those costs and the       respondents' indemnity costs to be paid from the       estate of Christopher John Neale
3.    Appellant's application for an indemnity certificate       for his costs of the appeal refused

CATCHWORDS:

PROCEDURE - COSTS - RECOVERY OF COSTS - whether unsuccessful appellant is entitled to his costs of the appeal - whether this Court should order that appellant's costs be paid out of the estate of Christopher John Neale

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - APPEAL COSTS FUND - POWER TO GRANT INDEMNITY CERTIFICATE - GENERAL PRINCIPLES AS TO GRANT OR REFUSAL - whether appellant should be granted an indemnity certificate for his costs of the appeal

Appeal Costs Fund Act 1973 (Qld)

Re McIntyre [1993] 2 Qd R 383, considered

COUNSEL:

L A Stephens for the appellant
K T Magee for the respondents

SOLICITORS:

Winchester Young and Maddern for the appellant
Haney Lawyers for the respondents

1. THE COURT:  On 11 August 2006 this Court delivered its reasons for judgment and ordered that the appellant Mr Greenland's appeal be dismissed and that by consent the Public Trustee of Queensland be appointed trustee of the estate of Christopher John Neale.  Each party was given leave to file submissions in relation to costs, incorporating any submissions relating to the issuing of an indemnity certificate, within seven days.

1. The primary point of the appeal was whether the trial judge wrongly removed the appellant as executor and trustee of the estate of Christopher John Neale deceased.  The appellant was unsuccessful on that issue and the appeal was dismissed.  It was common ground between the parties on the hearing of the appeal that the trial judge had inadvertently failed to order the appointment of the Public Trustee as trustee of the estate of Christopher John Neale instead of the appellant and that if the appeal was unsuccessful that should be corrected.  That is why this Court ordered that, by consent, the Public Trustee of Queensland be appointed trustee of the estate of Christopher John Neale.

1. The appellant contends that he ought to be entitled to his costs of the appeal, or alternatively that his costs of the appeal should be paid out of the estate, because it was only possible to correct the primary judge's order concerning the Public Trustee by appealing. The formal wording of the primary judge's order was made with the appellant's concurrence. The order insofar as it concerned the Public Trustee could easily have been corrected with the agreement of both parties and the Public Trustee on an application before the primary judge under r 388 Uniform Civil Procedure Rules 1999 (Qld). This Court's order now correcting that unintentional omission in the primary judge's orders does not justify this Court departing from the usual order awarding costs in favour of a successful party.

1. Although the appeal concerned an estate and the appellant may have genuinely believed he was acting in accordance with the testator's wishes in appealing, the appeal was unmeritorious.  This is not an appropriate case in which to order that the unsuccessful appellant's costs be paid out of the estate:  cf Re McIntyre.[1]

   [1][1993] 2 Qd R 383, 388.

1. We would order that the appellant pay the respondents' costs of the appeal to be assessed on the standard basis.  The difference, if any, between those costs and the respondents' indemnity costs should be paid from the estate of Christopher John Neale.

1. The appellant has not demonstrated any basis for the granting of an indemnity certificate in his favour under the Appeal Costs Fund Act 1973 (Qld). We would refuse his application for an indemnity certificate for his costs of the appeal under that Act.