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

This proceeding dealt with two applications.
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.
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…

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 Callaghan v Zevering (No 2)

Details

AGLC: Callaghan v Zevering (No 2) [2010] QSC 345
Case: [2010] QSC 345
Decision Date: 14/09/2010

CaseChat Overview and Summary

In the matter of Callaghan v Zevering (No 2), the court was called upon to determine the issue of costs associated with two distinct applications within the proceedings. The principal application was brought by the trustees concerning the remuneration of trustees, while the cross-application pertained to related matters. The court was tasked with deciding how the costs of these applications should be allocated and who should bear the financial burden.

The central legal issue before the court was the apportionment of costs between the parties involved in the applications. Specifically, the court needed to decide whether the costs of the whole action should follow the event, meaning the costs would be borne by the party that did not prevail in the proceeding. Additionally, the court had to determine the appropriate basis for calculating these costs, whether on an indemnity basis or otherwise.

The court ruled that the costs of the applicant's application, to the extent not already provided for by a previous order, should be paid out of the estate of the Outlook Estate Unit Trust on an indemnity basis. This means that the losing party would bear the full costs of the winning party's legal expenses. Furthermore, the court ordered that the first respondent should pay the applicants' standard costs of and incidental to the cross-application. This decision ensured that the financial responsibility for the legal proceedings was appropriately assigned based on the outcomes of the respective applications.

Orders

Orders of the court

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.

The first respondent shall pay the applicants’ standard costs of and incidental to the cross- application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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