Cowley v Macwood Pty Ltd (No. 2) - [2015] QSC 344

SUPREME COURT OF QUEENSLAND

CITATION:

Cowley v Macwood Pty Ltd & Ors (No. 2) [2015] QSC 344

PARTIES:

GRAEME CHARLES COWLEY
(applicant)

v

MACWOOD PTY LTD T/AS HOT STUFF PROPERTY PTY LTD AS/TRUSTEE FRANK ROBERT COWLEY, JOHN WELLESLEY COWLEY, GARY ROY COWLEY & JENELLE MAURENE COOKE
(respondent)

FILE NO/S:

S53/2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Mackay

DELIVERED ON:

4 December 2015

DELIVERED AT:

Rockhampton

HEARING DATE:

On the papers

JUDGE:

McMeekin J

ORDERS:

The applicant’s and the respondents’ costs of and incidental to the application filed 9 October 2015 be paid on the standard basis from the proceeds of sale of the trust properties;1.

The costs incurred by the trustees John Murphy and Jennifer Story of and incidental to the application filed 9 October 2015 be paid on the standard basis from the proceeds of sale of the trust properties but limited to those costs incurred after 20 October 2015.2.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – REMUNERATION – ALLOWANCE BY THE COURT – PRINCIPLES AND GROUNDS FOR GRANT AND REFUSAL – where trustees usually entitled to have costs paid from the trust fund – where there was no reasonable explanation for the trustees delay in selling the trust property – whether the delay of the trustees was so unreasonable as to deny their costs or require them to pay the costs of the other parties – whether the costs incurred by the trustee in responding to the application can be seen to be reasonably incurred

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – whether costs to be assessed on the indemnity basis

Uniform Civil Procedure Rules 1999 (Qld), r 700

Adsett v Berlouis & Ors [1992] 109 ALR 100
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Coral Vista Pty Ltd v Halkeas [2010] QSC 449
Di Carlo v Dubois [2002] QCA 225
In the Will of Thomas Field; The Ballarat Trustees, Executors and Agency Co Ltd v Field & Ors [1931] VLR 37
Quinn Villages Pty Ltd v Mulherin [2006] QCA 500
Northey v Juul [2014] NSWSC 464

COUNSEL:

M Hodge for the applicant
S Naylor sol for the respondent
G Smart sol for the statutory trustee

SOLICITORS:

SB Wright, Wright & Condie for the applicant
Macrossan & Amiet for the respondent

SR Wallace & Wallace for the statutory trustee

MCMEEKIN J: On 21 October 2015 I published draft reasons responding to an application for removal of the statutory trustees.[1] Subsequently the parties reached an agreement as to the form of the orders that were consistent with those reasons. On 4 November 2015, I made orders in accordance with the draft provided. Effectively I left the trustees in place and directed a sale of the subject properties. There remained the issue of costs in respect of which I invited submissions.
[1]Cowley v Macwood Pty Ltd & Ors [2015] QSC 343.

I have now received submissions from the applicant, respondent and…

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] QSC 344
Decision Date: 4 December 2015

CaseChat Overview and Summary

The case of Cowley v Macwood Pty Ltd (No. 2) involved a dispute over the remuneration of trustees and the payment of costs from the trust fund. The applicants sought directions and orders concerning the sale of trust properties and the payment of costs. The court was tasked with deciding whether the trustees were entitled to have their costs paid from the trust fund, whether the delay in selling the trust property was unreasonable, and whether the costs incurred by the trustees in responding to the application could be considered reasonably incurred.

The legal issues before the court included the principles and grounds for granting or refusing the trustees' costs, whether the trustees' delay in selling the trust property was so unreasonable as to deny their costs or require them to pay the costs of the other parties, and whether the costs incurred by the trustees in responding to the application could be seen to be reasonably incurred. The court considered the relevant authorities and principles, including the general rule that trustees are usually entitled to have their costs paid from the trust fund, but that this entitlement can be refused if the trustees' conduct is unreasonable.

The court found that the trustees' delay in selling the trust property was unreasonable, and that the delay was not adequately explained. The court also found that the costs incurred by the trustees in responding to the application were reasonably incurred, but that they were limited to those costs incurred after 20 October 2015. The court ordered that the applicants' and respondents' costs of and incidental to the application filed 9 October 2015 be paid on the standard basis from the proceeds of sale of the trust properties. The court also ordered that the costs incurred by the trustees John Murphy and Jennifer Story of and incidental to the application filed 9 October 2015 be paid on the standard basis from the proceeds of sale of the trust properties, but limited to those costs incurred after 20 October 2015.

Orders

Orders of the court

The applicant’s and the respondents’ costs of and incidental to the application filed 9 October 2015 be paid on the standard basis from the proceeds of sale of the trust properties;1.

The costs incurred by the trustees John Murphy and Jennifer Story of and incidental to the application filed 9 October 2015 be paid on the standard basis from the proceeds of sale of the trust properties but limited to those costs incurred after 20 October 2015.2.

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:	Cowley v Macwood Pty Ltd & Ors (No. 2) [2015] QSC 344
PARTIES:	GRAEME CHARLES COWLEY (applicant) v MACWOOD PTY LTD T/AS HOT STUFF PROPERTY PTY LTD AS/TRUSTEE FRANK ROBERT COWLEY, JOHN WELLESLEY COWLEY, GARY ROY COWLEY & JENELLE MAURENE COOKE (respondent)
FILE NO/S:	S53/2012
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Mackay
DELIVERED ON:	4 December 2015
DELIVERED AT:	Rockhampton
HEARING DATE:	On the papers
JUDGE:	McMeekin J
ORDERS:	The applicant’s and the respondents’ costs of and incidental to the application filed 9 October 2015 be paid on the standard basis from the proceeds of sale of the trust properties;1. The costs incurred by the trustees John Murphy and Jennifer Story of and incidental to the application filed 9 October 2015 be paid on the standard basis from the proceeds of sale of the trust properties but limited to those costs incurred after 20 October 2015.2.
CATCHWORDS:	EQUITY – TRUSTS AND TRUSTEES – REMUNERATION – ALLOWANCE BY THE COURT – PRINCIPLES AND GROUNDS FOR GRANT AND REFUSAL – where trustees usually entitled to have costs paid from the trust fund – where there was no reasonable explanation for the trustees delay in selling the trust property – whether the delay of the trustees was so unreasonable as to deny their costs or require them to pay the costs of the other parties – whether the costs incurred by the trustee in responding to the application can be seen to be reasonably incurred PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – whether costs to be assessed on the indemnity basis Uniform Civil Procedure Rules 1999 (Qld), r 700 Adsett v Berlouis & Ors [1992] 109 ALR 100 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 Coral Vista Pty Ltd v Halkeas [2010] QSC 449 Di Carlo v Dubois [2002] QCA 225 In the Will of Thomas Field; The Ballarat Trustees, Executors and Agency Co Ltd v Field & Ors [1931] VLR 37 Quinn Villages Pty Ltd v Mulherin [2006] QCA 500 Northey v Juul [2014] NSWSC 464
COUNSEL:	M Hodge for the applicant S Naylor sol for the respondent G Smart sol for the statutory trustee
SOLICITORS:	SB Wright, Wright & Condie for the applicant Macrossan & Amiet for the respondent SR Wallace & Wallace for the statutory trustee