Coore v Coore

Case [2013] QSC 196


SUPREME COURT OF QUEENSLAND

CITATION:

Coore v Coore [2013] QSC 196

PARTIES:

MICHAEL KARL KLATT AS ADMINISTRATOR OF THE ESTATE OF GEORGE HAROLD COORE, DECEASED

(applicant)

AND

PENELOPE DOONE COORE

(respondent)

FILE NO/S:

SC No 12597 of 2009

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

22 April 2013

JUDGE:

Atkinson J

ORDER:

Pursuant to section 96 of the Trusts Act 1973 (Qld), the applicant is advised and directed that:1.          

he would be justified in taking no further steps to prosecute the claims in proceeding S 13644 of 2010 (principal proceeding);(a)        

he would be justified in not extending any further indemnity out of the estate of the deceased in respect of legal costs and outlays incurred by Christopher Robert Coore, whilst he was executor of the estate, in prosecuting the claims in the principal proceeding;(b)        

he would be justified in seeking to compromise the application of the deceased’s widow, Pamela Mary Coore, pursuant to section 41 of the Succession Act 1981 (Qld) for further provision to be made for her out of the estate of the deceased on the basis that she be given, absolutely, whatever remains of the deceased’s estate once it has been completely administered;(c)        

he would be justified in seeking to compromise the application of the deceased’s son, Simon George Coore, in proceeding S 11630 of 2009 pursuant to section 41 of the Succession Act for further provision to be made for him out of the estate of the deceased on the basis that it be dismissed with no order as to costs;(d)        

Pursuant to r 700(2) of the Uniform Civil Procedure Rules 1999 (Qld), Christopher Robert Coore is not entitled to have any further indemnity out of the estate of the deceased in respect of legal costs and outlays incurred by him, whilst he was executor of the estate, in prosecuting the claims in the principal proceeding;2.          

The following opinions of counsel tendered on the hearing of the application, that is to say:3.          

the opinions of Mr Porter of Counsel dated 1 September 2009, 7 October 2010, 10 December 2010 and 18 February 2011;(a)        

the opinions of Mr O’Neill of Counsel dated 9 June 2011 and 24 April 2013;(b)        

the opinion of Mr Fraser of Counsel dated 12 March 2012;(c)        

the opinion of Mr Otto of Counsel dated 26 November 2012,(d)        

be placed in a sealed envelope marked “Not to be opened without an order of the court”;

The costs of Fredric Peter Smith as litigation guardian for James Edward Coore be assessed on the indemnity basis and paid out of the estate;4.          

The applicant’s costs of this application be assessed on the indemnity basis and paid out of the estate.5.          

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – COSTS – WHERE LITIGATION CAUSED BY TESTATOR, EXECUTOR OR INTERESTED PERSONS – GENERALLY – where application made pursuant to Trusts Act

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Coore v Coore [2013] QSC 196
Case
[2013] QSC 196
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CaseChat Overview and Summary

In the case of Coore v Coore, the court addressed various issues relating to succession and the administration of an estate, specifically focusing on the litigation caused by the executor and interested parties. The matter involved the estate of a deceased person, with the original executor having been revoked and letters of administration being granted to an administrator due to substantial depletion of the estate. The court was asked to provide directions concerning the continuation of litigation on behalf of and at the expense of the estate, as well as to determine whether certain costs should be borne by the estate.

The legal issues before the court included whether the trustee should continue to prosecute claims in the principal proceeding, whether the former executor was entitled to continue the litigation as a derivative action, and whether costs incurred by the former executor should be indemnified by the estate. The court also considered whether the trustee should defend proceedings brought by the deceased's widow and son, seeking further provision under the Succession Act 1981 (Qld).

The court found that the trustee would be justified in taking no further steps to prosecute the claims in the principal proceeding and in not extending any further indemnity for legal costs incurred by the former executor. It was also determined that the trustee should seek to compromise the widow's application for further provision, offering her the remaining estate absolutely, and dismissing the son's application with no order as to costs. The former executor was not entitled to any further indemnity for his legal costs. The court further ordered that opinions of counsel be sealed and not opened without a court order and that the costs of the litigation guardian and the applicant's costs be assessed on an indemnity basis and paid out of the estate.

In summary, the court provided comprehensive directions to the trustee regarding the administration of the estate and the handling of ongoing litigation, ensuring that the interests of the estate and its beneficiaries were protected while managing the financial burden of the litigation.

Orders

Orders of the court

Pursuant to section 96 of the Trusts Act 1973 (Qld), the applicant is advised and directed that:1.

he would be justified in taking no further steps to prosecute the claims in proceeding S 13644 of 2010 (principal proceeding);(a)

he would be justified in not extending any further indemnity out of the estate of the deceased in respect of legal costs and outlays incurred by Christopher Robert Coore, whilst he was executor of the estate, in prosecuting the claims in the principal proceeding;(b)

he would be justified in seeking to compromise the application of the deceased’s widow, Pamela Mary Coore, pursuant to section 41 of the Succession Act 1981 (Qld) for further provision to be made for her out of the estate of the deceased on the basis that she be given, absolutely, whatever remains of the deceased’s estate once it has been completely administered;(c)

he would be justified in seeking to compromise the application of the deceased’s son, Simon George Coore, in proceeding S 11630 of 2009 pursuant to section 41 of the Succession Act for further provision to be made for him out of the estate of the deceased on the basis that it be dismissed with no order as to costs;(d)

Pursuant to r 700(2) of the Uniform Civil Procedure Rules 1999 (Qld), Christopher Robert Coore is not entitled to have any further indemnity out of the estate of the deceased in respect of legal costs and outlays incurred by him, whilst he was executor of the estate, in prosecuting the claims in the principal proceeding;2.

The following opinions of counsel tendered on the hearing of the application, that is to say:3.

the opinions of Mr Porter of Counsel dated 1 September 2009, 7 October 2010, 10 December 2010 and 18 February 2011;(a)

the opinions of Mr O’Neill of Counsel dated 9 June 2011 and 24 April 2013;(b)

the opinion of Mr Fraser of Counsel dated 12 March 2012;(c)

the opinion of Mr Otto of Counsel dated 26 November 2012,(d)

be placed in a sealed envelope marked “Not to be opened without an order of the court”;

The costs of Fredric Peter Smith as litigation guardian for James Edward Coore be assessed on the indemnity basis and paid out of the estate;4.

The applicant’s costs of this application be assessed on the indemnity basis and paid out of the estate.5.

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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