Davidson v Cameron - [2016] QSC 77

SUPREME COURT OF QUEENSLAND

CITATION:

Davidson v Cameron & Ors [2016] QSC 77

PARTIES:

PETER WILLIAM DAVIDSON as Executor and Trustee of the Will of JOHN FRANCIS JONES, deceased
(applicant)

v

SUSAN PATRICIA CAMERON
(first respondent)

AND

JACK BRADFORD as Personal Representative of ALMA BERNICE PERKINS, deceased

(second respondent)

AND

DOROTHY ANNE STEVENS
(third respondent)

AND

KATHLEEN MIDDLETON

(fourth respondent)

FILE NO:

BS5096/15

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

8 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

24 June 2015, written submissions received 23 December 2015 and 4 January 2016

JUDGE:

Jackson J

ORDERS:

The order of the court is:

The third respondent’s costs of the application for declarations and directions as to the will of the testator be assessed on the indemnity basis and paid from any assets of the estate.1.

.The applicant’s costs of the application for declarations and directions as to the trust of the hotel be assessed on the indemnity basis and be paid from the assets of the trust2.

CATCHWORDS:

SUCCESSION – PERSONAL REPRESENTATIVES – OTHER MATTERS – where the applicant sought directions as to the construction and administration of the will – where that application was in some respects appropriate and in other respects unnecessary – whether the applicant executor was entitled to costs – whether the third respondent was entitled to costs from the estate

EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – INDEMNITY, LIEN AND REIMBURSEMENT – LEGAL COSTS AND COMMISSION ENTITLEMENT – where the applicant also sought directions as to the construction and administration of the trust of a hotel – where that application was in some respects appropriate and in other respects unnecessary – whether the applicant trustee was entitled to costs from the assets of the trust of the hotel

Davidson v Cameron [2015] QSC 294, cited

COUNSEL:

Written submission by the applicant in person
Written submission the first respondent
No appearance by the second or fourth respondent
Written submission for the third respondent

No submission by the Attorney-General

SOLICITORS:

Applicant in person
Tudhope Lawyers for the first respondent
No appearance by the second or fourth respondent
Gall, Standfield & Smith Solicitors for the third respondent
Crown law for the Attorney-General

JACKSON J: On 29 October 2015, I decided the principal questions raised by the application. Orders were subsequently made to give effect to the reasons. The remaining question is that of costs.

None of the first, second or fourth respondents or the Attorney-General applies for any order for costs and neither the applicant nor the third respondent applies for any order for costs against them.

By his written submission the applicant applies for an order that his costs as trustee of the hotel be paid from the assets of the trust of the hotel, but specifically from the share of the third respondent of the income produced by the hotel. In effect that would be an order that she pay his costs. He opposes any order that 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 Davidson v Cameron

Details

AGLC: Davidson v Cameron [2016] QSC 77
Case: [2016] QSC 77
Decision Date: 8 April 2016

CaseChat Overview and Summary

Davidson brought an application in the Supreme Court of Queensland seeking directions in relation to the construction and administration of the will of Cameron, who had recently passed away. Davidson was the personal representative of Cameron's estate and was also the trustee of a trust holding a hotel. Cameron's will made provisions for the distribution of his estate, including the hotel, to various beneficiaries. The application also sought directions regarding the trust of the hotel. Cameron's third respondent opposed the application, arguing that some of the directions sought by Davidson were unnecessary and that costs should be awarded against Davidson and the trust.

The court considered whether the application for directions was appropriate in all respects and whether Davidson was entitled to costs from the estate and the trust. The court determined that while some of the directions sought by Davidson were necessary, others were not. The court found that Davidson was entitled to costs for the application concerning the will, to be paid from the estate on an indemnity basis. Regarding the trust, the court held that Davidson was also entitled to costs, to be paid from the trust assets on an indemnity basis.

The Supreme Court ordered that the third respondent's costs for the application concerning the will be assessed on an indemnity basis and paid from the estate. Additionally, the court ordered that Davidson's costs for the application concerning the trust be assessed on an indemnity basis and paid from the trust assets. This decision clarified the circumstances under which costs may be awarded to personal representatives and trustees in estate administration matters, ensuring that unnecessary applications do not unduly burden the estate or trust.

Orders

Orders of the court

The order of the court is:

The third respondent’s costs of the application for declarations and directions as to the will of the testator be assessed on the indemnity basis and paid from any assets of the estate.1.

.The applicant’s costs of the application for declarations and directions as to the trust of the hotel be assessed on the indemnity basis and be paid from the assets of the trust2.

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:	Davidson v Cameron & Ors [2016] QSC 77
PARTIES:	PETER WILLIAM DAVIDSON as Executor and Trustee of the Will of JOHN FRANCIS JONES, deceased (applicant) v SUSAN PATRICIA CAMERON (first respondent) AND JACK BRADFORD as Personal Representative of ALMA BERNICE PERKINS, deceased (second respondent) AND DOROTHY ANNE STEVENS (third respondent) AND KATHLEEN MIDDLETON (fourth respondent)
FILE NO:	BS5096/15
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	8 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	24 June 2015, written submissions received 23 December 2015 and 4 January 2016
JUDGE:	Jackson J
ORDERS:	The order of the court is: The third respondent’s costs of the application for declarations and directions as to the will of the testator be assessed on the indemnity basis and paid from any assets of the estate.1. .The applicant’s costs of the application for declarations and directions as to the trust of the hotel be assessed on the indemnity basis and be paid from the assets of the trust2.
CATCHWORDS:	SUCCESSION – PERSONAL REPRESENTATIVES – OTHER MATTERS – where the applicant sought directions as to the construction and administration of the will – where that application was in some respects appropriate and in other respects unnecessary – whether the applicant executor was entitled to costs – whether the third respondent was entitled to costs from the estate EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – INDEMNITY, LIEN AND REIMBURSEMENT – LEGAL COSTS AND COMMISSION ENTITLEMENT – where the applicant also sought directions as to the construction and administration of the trust of a hotel – where that application was in some respects appropriate and in other respects unnecessary – whether the applicant trustee was entitled to costs from the assets of the trust of the hotel Davidson v Cameron [2015] QSC 294, cited
COUNSEL:	Written submission by the applicant in person Written submission the first respondent No appearance by the second or fourth respondent Written submission for the third respondent No submission by the Attorney-General
SOLICITORS:	Applicant in person Tudhope Lawyers for the first respondent No appearance by the second or fourth respondent Gall, Standfield & Smith Solicitors for the third respondent Crown law for the Attorney-General