Cerneaz v Cerneaz (No 2) - [2015] QDC 73

DISTRICT COURT OF QUEENSLAND

CITATION:

Cerneaz v Cerneaz & Anor (No 2) [2015] QDC 73

PARTIES:

JOAN CERNEAZ
(applicant)

v

MERISA NICOLE CERNEAZ AND MELINDA GAIL CERNEAZ, AS PERSONAL REPRESENTATIVES OF THE ESTATE OF SERGIO CERNEAZ (DECEASED)
(respondents)

FILE NO/S:

2499/13

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

25 March 2015

JUDGE:

Smith DCJA

ORDER:

1.   That the respondents’ costs of and incidental to the proceedings be assessed on an indemnity basis but are to be capped at $130,000.

2.   The costs referred to in paragraph 1 be paid out of the estate of Sergio Cerneaz.

3.   The applicant’s costs of and incidental to the proceedings be assessed on an indemnity basis but are to be capped at $100,000.

4.   The costs referred to in paragraph 3 be paid out of the estate of Sergio Cerneaz.

5.   Liberty to apply.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION APPLICATION – whether should be assessed and paid from the estate of an indemnity basis – whether should be capped

Uniform Civil Procedure Rules 1999 (Q) 681, 687, 700, 704

District Court Practice Direction 8 of 2001

Bladwell v Davis & Anor [2004] NSWCA 170

Bladwell v Davis [2003] NSWSC 882

Carroll v Cowburn [2003] NSWSC 248

Cerneaz v Cerneaz & Anor [2015] QDC 41

Collett v Knox [2010] QSC 132

Gill v Smith [2007] NSWSC 832

Jackson v Riley (unreported) NSWSC - 3701/1987 – 24 February 1989 – BC8902497

J and D Rigging Pty Ltd v Agripower Australia Ltd and Ors [2014] QCA 23

Jones v Jones [2012] QSC 342

Kozak v Matthews [2007] QSC 203

Lownds v Home Office (Practice Note) [2002] 1 WLR 2450

Magur v Brydon [2014] NSWSC 1931

Manly v Public Trustee [2007] QSC 388

Nesbit v Public Trustee [2003] QDC 370

Oshlack v Richmond River Council (1998) 193 CLR 72

Re McIntyre [1993] 2 Qd R 383

Sherborne Estate (No. 2) (Vanvalen v Neaves) (2005) 65 NSWLR 268

Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521; (1993) 67 ALJR 708

Underwood v Underwood [2009] QSC 107

Mr M Conrick for the applicant

Ms D Pendergast for the respondents

SOLICITORS:

Rod Holloway & Co for the applicant

Robbins Watson Solicitors for the respondents

Introduction

This is the costs decision consequent upon judgment given on 27 February 2015.[1] In that decision I ordered a legacy in favour of the applicant in the sum of $350,000.
[1]Cerneaz v Cerneaz & Anor [2015] QDC 41.

The respondents submit, firstly, that their costs be paid out of the estate on an indemnity basis (estimated to be in the order of $162,417.28[2]), and secondly submit that the applicant’s costs be capped at $55,000 or alternatively assessed on the standard basis.
[2]This is $132,000 together with $30,000 for future costs.

The applicant submits that her costs should be paid from the estate, assessed on an indemnity basis in the sum of $140,000.

It is common ground between…

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.

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Details

Case: [2015] QDC 73
Decision Date: 7 April 2015

CaseChat Overview and Summary

The case of Cerneaz v Cerneaz (No 2) involves a family provision application brought by the applicant against the estate of Sergio Cerneaz. The dispute revolves around the assessment and payment of legal costs associated with the proceedings. The matter was heard and determined in the Supreme Court of Queensland. The key legal issues before the court were whether the costs should be assessed on an indemnity basis and if they should be subject to a cap.

The court was required to determine the appropriate method for assessing legal costs in the context of a family provision application. The applicant argued for costs to be assessed on an indemnity basis, meaning the full amount of costs incurred would be payable by the respondent. Additionally, the court needed to decide if there should be a cap on the costs to prevent excessive amounts being charged to the estate. The court considered the relevant statutory provisions and case law to address these issues.

In its judgment, the court ruled that the costs of both the applicant and the respondent should be assessed on an indemnity basis, reflecting the full amount of costs incurred. However, the court imposed a cap on these costs to prevent undue financial burden on the estate. Specifically, the respondent's costs were capped at $130,000, and the applicant's costs were capped at $100,000. The court further ordered that these capped costs would be paid out of the estate of Sergio Cerneaz. The court also granted liberty to apply for further orders if necessary.

The final orders of the court were that the respondents’ costs, subject to the indemnity assessment and a cap of $130,000, be paid from the estate of Sergio Cerneaz. Similarly, the applicant’s costs, assessed on an indemnity basis and capped at $100,000, were also to be paid from the estate. The court's decision balanced the need for a fair assessment of costs with the protection of the estate from excessive financial liability.

Orders

Orders of the court

1. That the respondents’ costs of and incidental to the proceedings be assessed on an indemnity basis but are to be capped at $130,000.

2. The costs referred to in paragraph 1 be paid out of the estate of Sergio Cerneaz.

3. The applicant’s costs of and incidental to the proceedings be assessed on an indemnity basis but are to be capped at $100,000.

4. The costs referred to in paragraph 3 be paid out of the estate of Sergio Cerneaz.

5. Liberty to apply.

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:	Cerneaz v Cerneaz & Anor (No 2) [2015] QDC 73
PARTIES:	JOAN CERNEAZ (applicant) v MERISA NICOLE CERNEAZ AND MELINDA GAIL CERNEAZ, AS PERSONAL REPRESENTATIVES OF THE ESTATE OF SERGIO CERNEAZ (DECEASED) (respondents)
FILE NO/S:	2499/13
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	7 April 2015
DELIVERED AT:	Brisbane
HEARING DATE:	25 March 2015
JUDGE:	Smith DCJA
ORDER:	1. That the respondents’ costs of and incidental to the proceedings be assessed on an indemnity basis but are to be capped at $130,000. 2. The costs referred to in paragraph 1 be paid out of the estate of Sergio Cerneaz. 3. The applicant’s costs of and incidental to the proceedings be assessed on an indemnity basis but are to be capped at $100,000. 4. The costs referred to in paragraph 3 be paid out of the estate of Sergio Cerneaz. 5. Liberty to apply.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION APPLICATION – whether should be assessed and paid from the estate of an indemnity basis – whether should be capped Uniform Civil Procedure Rules 1999 (Q) 681, 687, 700, 704 District Court Practice Direction 8 of 2001 Bladwell v Davis & Anor [2004] NSWCA 170 Bladwell v Davis [2003] NSWSC 882 Carroll v Cowburn [2003] NSWSC 248 Cerneaz v Cerneaz & Anor [2015] QDC 41 Collett v Knox [2010] QSC 132 Gill v Smith [2007] NSWSC 832 Jackson v Riley (unreported) NSWSC - 3701/1987 – 24 February 1989 – BC8902497 J and D Rigging Pty Ltd v Agripower Australia Ltd and Ors [2014] QCA 23 Jones v Jones [2012] QSC 342 Kozak v Matthews [2007] QSC 203 Lownds v Home Office (Practice Note) [2002] 1 WLR 2450 Magur v Brydon [2014] NSWSC 1931 Manly v Public Trustee [2007] QSC 388 Nesbit v Public Trustee [2003] QDC 370 Oshlack v Richmond River Council (1998) 193 CLR 72 Re McIntyre [1993] 2 Qd R 383 Sherborne Estate (No. 2) (Vanvalen v Neaves) (2005) 65 NSWLR 268 Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521; (1993) 67 ALJR 708 Underwood v Underwood [2009] QSC 107
Mr M Conrick for the applicant Ms D Pendergast for the respondents
SOLICITORS:	Rod Holloway & Co for the applicant Robbins Watson Solicitors for the respondents