Callaghan v Zevering (No 2)

[2010] QSC 345

SUPREME COURT OF QUEENSLAND

CITATION: 

Callaghan & Anor v Zevering & Ors (No 2) [2010] QSC 345

PARTIES: 

LYNNE CALLAGHAN and YVONNE SHIRLEY
RAYMONT as trustees of THE OUTLOOK ESTATE
TRUST
(applicants)
v
CORNELIA ELLEN ZEVERING
(first respondent)
and
ALAN BRYCE BRYDEN, SHARON PATRICIA
BRYDEN, ALFRED HENRY NOTHDURFT, JOYCELE
ANNIE NOTHDURFT, BRILYN INVESTMENTS PTY
LTD (ACN 060 016 846), ELIZABETH ANN
CLEMENTS, BASIL ERNEST CLEMENTS, ELVA
EVELYN DUGGAN, LAWSON ROY SMITH, PEGGY
MARGO SMITH, MARION TERRY HUMPHREYS,
OLAYINKA ZEVERING, ROBERT NEWTON, MARY
LAURIE NEWTON, ROBERT WILLIAM BRAZIER,
MARY CICELY BRAZIER, STUART WYNDHAM
MARLOWE, CLAIRE BARBARA MARLOWE,
ANGELA MARIE THERESIA SPOONER, WARWICK
GREGORY SPOONER, WILLIAM VERNON KELLY,
KATHLEEN KELLY and GREGORY THOMAS
MARQUIS RAYMONT
(second respondents)

FILE NO: 

BS 10480 of 2009

DIVISION: 

Trial Division

PROCEEDING: 

Application

ORIGINATING 
COURT: 

Supreme Court of Queensland

DELIVERED ON: 

14 September 2010

DELIVERED AT: 

Brisbane

HEARING DATE: 

Written submissions as to costs

JUDGE: 

Daubney J

ORDERS: 

1.	To the extent not provided for by the order of 15 October 2009, each party’s costs of and incidental to the applicant’s application shall be paid out of the estate of the Outlook Estate Unit Trust on an indemnity basis.
2.	The first respondent shall pay the applicants’ standard costs of and incidental to the cross- application.

CATCHWORDS: 

PROCEDURE – COSTS – GENERAL RULE – COSTS
FOLLOW THE EVENT – COSTS OF WHOLE ACTION –
GENERALLY – where the proceeding dealt with two
applications – where the principal application was bought by
the trustees regarding remuneration of trustees – where the
considerable contest in the proceeding was in relation to the
cross-application by the first respondent for further
remuneration – where the first respondent wholly failed in
her application – whether the first respondent ought to pay
the applicants’ costs of the cross-application

Callaghan & Anor v Zevering & Ors [2010] QSC 323, cited

COUNSEL: 

BJ Clarke, SC for the applicants
LD Bowden for the first respondent
No appearance for the second respondents

SOLICITORS: 

Macrossans Lawyers for the applicant
James, Byrne and Rudz Solicitors for the first respondent
No appearance for the second respondents

1. This proceeding dealt with two applications.

2. The principal application was brought by the trustees of the Outlook Estate Unit Trust seeking orders and directions regarding the remuneration of the trustees. The circumstances of the establishment of the Trust are set out in my principal judgment.[1]

   [1] [2010] QSC 323.

3. The application to have the remuneration of the trustees regularised in accordance with a resolution passed at a meeting of the unit holders on 18 March 2002 was, in the circumstances of this case, appropriate and prudent. The indemnity costs of all parties in respect of that principal application should be paid out of the estate.

[4]     The principal contest before me, however, was the cross-application by Ms Zevering for remuneration over and above that which had been provided for by the resolution of the unit holders. An issue as to how the trustees’ remuneration should be dealt with in terms of the mortgagee account effectively fell away before the hearing of Ms Zevering’s cross-application.

1. As is made clear in my previous judgment, the evidence on the cross-application was directed to an issue which was for Ms Zevering’s personal benefit. My conclusion was that she had not established the existence of any exceptional circumstances which would warrant the exercise of the Court’s discretion to allow remuneration over and above that which was agreed between the trustees and the unit holders.

2. The submission made on her behalf that her cross-application was not “adverse to the other beneficiaries” ignores the fact that the other trustees and beneficiaries were put to expense in defending a cross-application in respect of which a considerable amount of evidence was led and on which there was considerable argument. Ms Zevering failed completely in her cross-application.

3. It seems to me that there is no reason to depart from the usual rule in respect of Ms Zevering’s cross-application. There will be an order that the first respondent pay the applicants’ costs of and incidental to the cross-application on the standard basis.

4. Accordingly, there will be the following orders:

1.	To the extent not provided for by the order of 15 October 2009, each party’s costs of and incidental to the applicant’s application shall be paid out of the estate of the Outlook Estate Unit Trust on an indemnity basis.
2.	The first respondent shall pay the applicants’ standard costs of and incidental to the cross-application.