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

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.

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.

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].

The court has a discretion under r 681(1) to depart from the usual order…

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 Bauer v Hussey (No 2)

Details

AGLC: Bauer v Hussey (No 2) [2010] QSC 319
Case: [2010] QSC 319
Decision Date: 30 August 2010

CaseChat Overview and Summary

The case of Bauer v Hussey (No 2) involved proceedings concerning a deceased estate. The plaintiffs, Bauer, sought their costs of the proceeding after judgment was delivered in their favour. The defendants, Hussey, contended that the costs should be paid out of the deceased estate rather than from their own resources. The court was required to determine whether the plaintiffs were entitled to their costs and, if so, whether those costs should be paid from the estate of the deceased party. The central issue was the appropriate allocation of costs in an action concerning a deceased estate and the principles that govern such allocations.

The court examined the legal principles regarding costs in actions concerning deceased estates. It considered the general rule that the costs of litigation are to follow the event, meaning that the unsuccessful party typically bears the costs of the successful party. However, in cases involving deceased estates, there are additional considerations, including whether the estate has sufficient funds to cover the costs and whether the action was brought for the benefit of the estate or for the personal benefit of the plaintiffs. The court also noted the importance of fairness and equity in determining the allocation of costs.

In determining the outcome, the court found that the plaintiffs were entitled to their costs of the proceeding. The court held that the costs should not be paid out of the deceased estate but rather from the resources of the defendants. The court reasoned that the action was brought for the benefit of the plaintiffs and not solely for the benefit of the estate. Furthermore, the court considered the defendants’ ability to pay the costs and found that it was equitable for the defendants to bear the burden of the costs. Consequently, the court ordered that the defendants shall pay the plaintiffs’ costs of and incidental to the proceeding, to be assessed on the standard basis.

The final orders of the court mandated that the defendants pay the plaintiffs' costs, including any reserved costs, of and incidental to the proceeding, to be assessed on the standard basis. This decision underscores the importance of considering the specific circumstances of each case when determining the allocation of costs in actions involving deceased estates, ensuring that the outcome is fair and equitable for all parties involved.

Orders

Orders of the court

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.

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:	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