Collins v Marinovich - [2021] QSC 175

SUPREME COURT OF QUEENSLAND

CITATION:

Collins v Marinovich & Ors [2021] QSC 175

PARTIES:

ANGELIQUE ANNE COLLINS
(Plaintiff)

v

JOSIP MARINOVICH, SUSAN WHITEHAND, THERESA BROOK, CHRISTINE WALKER
(AS EXECUTORS AND TRUSTEES OF THE WILL OF PHYLLIS POWER-NEMETH DECEASED)
(First Defendants)

AND

CHRISTINE WALKER

(Second Defendant)

FILE NO:

BS 6150 of 2019

DIVISION:

Trial Division

PROCEEDING:

Amended Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

27 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Ryan J

ORDERS:

1.   It is declared that the debt secured by Mortgage No. 709701630 as amended by Amendment to Mortgage No. 711216936 (“the Mortgage”) was forgiven on 13 October 2016 being the date of death of Phyllis Power-Nemeth (“the Deceased”).

2.   Within 14 days of the date of this Declaration (“the Due Date”) the Second Respondent is to execute and deliver to the Applicant’s Solicitors a discharge of the Mortgage capable of immediate registration in the Land Titles Office of the Department of Natural Resources, Mines and Energy (“the Discharge”).

3.   Failing the delivery of the duly executed Discharge by the Due Date, the Registrar of Titles or the Registrar of this Court may execute on behalf of the Second Respondent the Discharge upon request by the Applicant or her Solicitors and deliver the Discharge to the Applicant’s Solicitors.

4.   The Discharge is to be prepared by the Applicant forthwith and delivered to the Second Respondent’s Solicitors or the Registrar of Titles or the Registrar of this Court as the case may be.

5.   The Second Respondent is to pay the Applicant’s costs of the proceeding. The First Respondent is to pay the Applicant’s costs of paragraph 1 of the Applicant’s originating application filed 12 June 2019.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS – where the applicant sought a declaration that the debt secured by a mortgage was forgiven upon the death of the mortgagee – where the critical issue was whether relevant terms of the mortgage were testamentary and overridden by the will of deceased mortgagee or whether the debt was forgiven upon the death of the mortgagee in accordance with the mortgage terms – where the applicant was successful against both respondents – where the second respondent had the running of the critical issues at the hearing – where the first respondent acted as “contradictor” on the question whether it ought to be bound by the court’s declaration – whether costs ought to follow the event – whether costs ought to be payable on the standard or indemnity basis

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS – COSTS OUT OF FUND OR PROPERTY – LITIGATION CAUSED BY TESTATOR, PERSONAL REPRESENTATIVE OR BENEFICIARY – RELATING TO EXECUTION OR REVOCATION OF WILL – COSTS OF PERSONAL REPRESENTATIVE OR APPLICANT – where litigation “caused” by testator, but litigation not probate or estate litigation – whether appropriate to order that the parties’ costs be paid out of the estate, on the indemnity…

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 Collins v Marinovich

Details

AGLC: Collins v Marinovich [2021] QSC 175
Case: [2021] QSC 175
Decision Date: 27 July 2021

CaseChat Overview and Summary

Collins sought a declaration that a debt secured by a mortgage was forgiven upon the death of the mortgagee. The dispute was heard in the Supreme Court of Queensland. The critical issue was whether the terms of the mortgage were testamentary and overridden by the deceased mortgagee's will, or whether the debt was forgiven upon the death of the mortgagee in accordance with the mortgage terms. The second respondent had the running of the critical issues at the hearing, and the first respondent acted as a contradictor on the question whether it ought to be bound by the court’s declaration.

The court found in favour of Collins, declaring that the debt secured by the mortgage was forgiven upon the death of the mortgagee. The court held that the terms of the mortgage were not testamentary, and therefore the will of the deceased mortgagee did not override them. The court also held that the second respondent was to pay Collins’ costs of the proceeding, and that the first respondent was to pay Collins’ costs of paragraph 1 of the originating application filed on 12 June 2019. The court further held that it was appropriate to order that the parties’ costs be paid out of the estate, on the indemnity basis, by analogy with estate litigation.

The court made several declarations, including that the debt secured by the mortgage was forgiven upon the death of the mortgagee, and that the second respondent was to execute and deliver a discharge of the mortgage within 14 days of the date of the declaration. The court also ordered that the second respondent was to pay Collins’ costs of the proceeding, and that the first respondent was to pay Collins’ costs of paragraph 1 of the originating application. The court further ordered that if the second respondent failed to deliver the duly executed discharge by the due date, the Registrar of Titles or the Registrar of this Court may execute on behalf of the second respondent the discharge upon request by Collins or her solicitors and deliver the discharge to Collins’ solicitors.

Orders

Orders of the court

1. It is declared that the debt secured by Mortgage No. 709701630 as amended by Amendment to Mortgage No. 711216936 (“the Mortgage”) was forgiven on 13 October 2016 being the date of death of Phyllis Power-Nemeth (“the Deceased”).

2. Within 14 days of the date of this Declaration (“the Due Date”) the Second Respondent is to execute and deliver to the Applicant’s Solicitors a discharge of the Mortgage capable of immediate registration in the Land Titles Office of the Department of Natural Resources, Mines and Energy (“the Discharge”).

3. Failing the delivery of the duly executed Discharge by the Due Date, the Registrar of Titles or the Registrar of this Court may execute on behalf of the Second Respondent the Discharge upon request by the Applicant or her Solicitors and deliver the Discharge to the Applicant’s Solicitors.

4. The Discharge is to be prepared by the Applicant forthwith and delivered to the Second Respondent’s Solicitors or the Registrar of Titles or the Registrar of this Court as the case may be.

5. The Second Respondent is to pay the Applicant’s costs of the proceeding. The First Respondent is to pay the Applicant’s costs of paragraph 1 of the Applicant’s originating application filed 12 June 2019.

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:	Collins v Marinovich & Ors [2021] QSC 175
PARTIES:	ANGELIQUE ANNE COLLINS (Plaintiff) v JOSIP MARINOVICH, SUSAN WHITEHAND, THERESA BROOK, CHRISTINE WALKER (AS EXECUTORS AND TRUSTEES OF THE WILL OF PHYLLIS POWER-NEMETH DECEASED) (First Defendants) AND CHRISTINE WALKER (Second Defendant)
FILE NO:	BS 6150 of 2019
DIVISION:	Trial Division
PROCEEDING:	Amended Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	27 July 2021
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Ryan J
ORDERS:	1. It is declared that the debt secured by Mortgage No. 709701630 as amended by Amendment to Mortgage No. 711216936 (“the Mortgage”) was forgiven on 13 October 2016 being the date of death of Phyllis Power-Nemeth (“the Deceased”). 2. Within 14 days of the date of this Declaration (“the Due Date”) the Second Respondent is to execute and deliver to the Applicant’s Solicitors a discharge of the Mortgage capable of immediate registration in the Land Titles Office of the Department of Natural Resources, Mines and Energy (“the Discharge”). 3. Failing the delivery of the duly executed Discharge by the Due Date, the Registrar of Titles or the Registrar of this Court may execute on behalf of the Second Respondent the Discharge upon request by the Applicant or her Solicitors and deliver the Discharge to the Applicant’s Solicitors. 4. The Discharge is to be prepared by the Applicant forthwith and delivered to the Second Respondent’s Solicitors or the Registrar of Titles or the Registrar of this Court as the case may be. 5. The Second Respondent is to pay the Applicant’s costs of the proceeding. The First Respondent is to pay the Applicant’s costs of paragraph 1 of the Applicant’s originating application filed 12 June 2019.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS – where the applicant sought a declaration that the debt secured by a mortgage was forgiven upon the death of the mortgagee – where the critical issue was whether relevant terms of the mortgage were testamentary and overridden by the will of deceased mortgagee or whether the debt was forgiven upon the death of the mortgagee in accordance with the mortgage terms – where the applicant was successful against both respondents – where the second respondent had the running of the critical issues at the hearing – where the first respondent acted as “contradictor” on the question whether it ought to be bound by the court’s declaration – whether costs ought to follow the event – whether costs ought to be payable on the standard or indemnity basis PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS – COSTS OUT OF FUND OR PROPERTY – LITIGATION CAUSED BY TESTATOR, PERSONAL REPRESENTATIVE OR BENEFICIARY – RELATING TO EXECUTION OR REVOCATION OF WILL – COSTS OF PERSONAL REPRESENTATIVE OR APPLICANT – where litigation “caused” by testator, but litigation not probate or estate litigation – whether appropriate to order that the parties’ costs be paid out of the estate, on the indemnity…