Bridgewater, O'Neill, Ashton, Leahy and York v Leahy

[1995] QSC 272

IN THE SUPREME COURT

OF QUEENSLAND

No 983 of 1991

Before Mr Justice de Jersey

[Bridgewater, O'Neill, Ashton, Leahy and York v Leahy]

BETWEEN:

DESLEY FAY BRIDGEWATER, JOAN MARGARET O'NEILL,
            JUNE LORRAINE ASHTON, SHIRLEY JOY LEAHY, AND STELLA YORK
  (Plaintiffs)

AND:

KEVIN LEAHY
  (Defendant)

AND:

NEIL WILLIAM YORK AND BERYL ELIZABETH YORK
  (Second Defendants)

REASONS FOR JUDGMENT - de JERSEY J.

Judgment delivered 15/09/1995

Counsel:D Cooper and Francis for Plaintiffs

Ryan for First Defendants

Williams QC and Whiteford for Second Defendants

Solicitors:Morrow & Associates for Plaintiffs

T J Gibson & Co for First Defendants

Heiser Bayly & Mortensen for Second Defendants

RULING ON COSTS - de JERSEY J.

Judgment delivered 16/09/1995

The first defendant, the executor, has not sought costs, and none are sought against him.
           The second defendants have succeeded, both with respect to the will and the later transactions.  Prima facie, they should therefore have their costs from the plaintiffs. 
           As to Horsley (1894) 5 QLJ 85, the plaintiffs were not "reasonably led to form an honest belief that there was good ground for impeaching the will" (p.88).  In failing to upset the later transactions, they failed to establish a number of serious allegations.
           I therefore will not order that the plaintiffs have their costs from the estate.  The order which is made should be the ordinary order, that is, that the plaintiffs pay the second defendants' costs to be taxed.
           Taxed on what basis?  There is no particular feature warranting taxation on the solicitor and own client basis, or an order for payment of the costs out of the estate.  I am also in part influenced by my view that there was ground for understandable concern about the inter vivos transactions, albeit not enough to lead to my upsetting those transactions. I refer especially to Beryl York's misstatement (p.26 reasons), and features of the structure of the transactions and Mr Pack's approach (p.22 to 25).  In challenging the inter vivos transactions  the plaintiffs should not be condemned as having been capricious. 
           While I appreciate that that observation only directly concerns those later transactions, my overall discretion is broad and unfettered (Williamson v. Spelleken (1977) Qd R 152), and that aspect confirms me in the view that I should not unduly burden the plaintiffs with relation to costs. To that extent, with relation to Mr Cooper's submission, I am prepared to give the plaintiffs' "attitude" in challenging the later transactions, a wider effect.
           I order that the plaintiffs pay the second defendants' costs of and incidental to the action, including any reserved costs, to be taxed.