Bauer v Hussey (No 2)

[2010] QSC 319

SUPREME COURT OF QUEENSLAND

CITATION:

Bauer & Ors v Hussey & Anor (No 2) [2010] QSC 319

PARTIES:

BREN OWEN BAUER, ROD ANDREW BAUER AND GAY ANN O’NEILE
(plaintiffs)

v

CAROLEANN HUSSEY AND HELEN RAE GERDEI
(defendants)

FILE NO:

BS 6029 of 2008

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

30 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions as to costs

JUDGE:

Daubney J

ORDER:

The defendants shall pay the plaintiff’s costs (including any reserved costs) of and incidental to the proceeding, to be assessed on the standard basis. 1.     

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS
FOLLOW THE EVENT – COSTS OF WHOLE ACTION –

GENERALLY – where matter concerns a deceased estate – where judgment has been delivered in favour of the plaintiff – where the plaintiffs seek their costs of the proceeding – where the defendants submit that the costs ought be paid out of the estate – whether the plaintiff is entitled to costs – whether the costs should be paid out of the deceased estate

Uniform Civil Procedure Rules 1999 (Qld), r 681

Bauer & Ors v Hussey & Anor [2010] QSC 269, cited

COUNSEL:

M Willmott SC and R Whiteford for the plaintiffs
DR Cooper SC and J Nevison for the defendants

SOLICITORS:

McCullough Robertson as town agents for Dunstan Legal for the plaintiffs
Kilmurray Solicitors for the defendants

1. On 30 July 2010 I gave judgment[1] in this dispute regarding the deceased’s estate, finding that the plaintiffs had proved their claim and ordering that declaratory and other relief sought by the plaintiffs be granted and dismissing the defendant’s counterclaim. The parties have now provided written submissions on costs.

   [1][2010] QSC 269.

1. The plaintiffs submit that costs ought follow the event and, therefore, that the appropriate order is that the defendants should pay the plaintiff’s costs of the proceeding (including any reserved costs) to be assessed on the standard basis.

1. The defendants, however, submit that the proper order should be that the plaintiffs’ and defendants’ costs of this proceeding, including any reserved costs, be paid from the Estate of Walter Bauer on an indemnity basis. It is submitted that there would be no good reason for a departure from the common order in estate matters (i.e. that the costs be paid by the estate) and that a costs order be made ‘on the basis of an assessment as to what the justice of the case requires’.[2] It was submitted that the defendants have acted properly in relation to the estate, that there were reasonable grounds for engaging in the litigation, that the deceased’s estate has sufficient assets to meet a costs order and that, as the estate has not been administered, the overall justice of the case requires that the costs should properly be paid out of the estate.

   [2]Submissions on behalf of the defendants as to costs at [2].

1. The court has a discretion under r 681(1) to depart from the usual order that costs follow the event if appropriate. I am not persuaded that there exists any reason for a departure from the usual order here.

1. This proceeding involved a claim and counterclaim by which the plaintiffs and defendants were both sued in their personal capacities (as the surviving trustees of the estate of Walter Ernest Bauer) and each claim was prosecuted and defended for the direct financial benefit of the parties, not as representatives for other persons. The plaintiffs’ claim was proved and the counterclaim was dismissed in its entirety. In light of this, the ‘justice of the case’ does not require that the estate should bear the costs of the proceeding.

1. There is also a practical consideration. If the costs were ordered to be paid from the estate of Walter Bauer, the only asset of which is the Mooloolaba unit which I ordered be conveyed to the plaintiffs and defendants as tenants in common in equal shares, an order that the estate bear the costs of the proceeding would necessitate the sale of the property and defeat the intention of the order.

1. In all the circumstances, it seems that there is no reason to depart from the usual order as to costs.

1. There will be the following order:

1. The defendants shall pay the plaintiff’s costs (including any reserved costs) of and incidental to the proceeding, to be assessed on the standard basis.