Brown v Grosfeld

In the matter of Brown v Grosfeld, the plaintiffs, the deceased's daughters, brought a family provision claim against the executor of the deceased's estate. The dispute centred around the fairness and appropriateness of the distribution of the deceased's estate, particularly the allocation of assets to the plaintiffs. The case was heard in the Supreme Court of Queensland.

The primary legal issues the court was required to address were the assessment of costs incurred by the plaintiffs and the executor. The plaintiffs argued for their costs to be assessed on an indemnity basis and for these costs to be capped, while the executor contended for the costs to be assessed on the ordinary basis and paid from the estate. The court had to consider whether the executor's decision not to accept a Calderbank offer was reasonable and whether it was feasible to make a just assessment of a proper amount at which to cap the plaintiffs' costs.

The court held that the executor did not act unreasonably in not accepting the Calderbank offer since it was not more favourable than the judgment obtained by the plaintiffs. It was also not possible to make a just assessment of what would be a proper amount at which to cap the plaintiffs' costs. Consequently, the court ruled that the plaintiffs were entitled to their costs on the ordinary basis as agreed or assessed, while the executor was entitled to costs on an indemnity basis to be paid out of the estate. The order that the executor's costs be paid out of the estate on an indemnity basis did not affect the beneficiaries' right to argue on the passing of accounts that the expense for legal costs should not be recoverable from the estate because it was not properly incurred.