Dawson v Joyner (No 2)

Case [2011] QSC 403

SUPREME COURT OF QUEENSLAND

CITATION:

Dawson v Joyner (No 2)  [2011] QSC 403

PARTIES:

GARRY DANIEL DAWSON

(Applicant)

And

LEIGH JAMES JOYNER (as executor of the Will of Daniel Dawson deceased)

( Respondent)

FILE NO/S:

S355 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

23 January 2012

DELIVERED AT:

Rockhampton

HEARING DATE:

On the Papers

JUDGE:

McMeekin J

ORDER:

That the applicant pay the respondent’s costs of and incidental to this proceeding:

on the standard basis up and until 16 June 2010; and(i)         

on the indemnity basis thereafter.(ii)        

CATCHWORDS:

PROCEDURE – COSTS – FAMILY MAINTENANCE AND PROVISION APPLICATION – where application unsuccessful - on which basis costs should be awarded

Succession Act 1981 (Qld)
Uniform Civil Procedure Rules 1999 (Qld), r 681

Barton v Daley [2011] QSC 322
Bowyer v Woods [2007] SASC 327
Coombes v Ward (No 2) [2002] VSC 84
Dawson v Joyner  [2011] QSC 385
Dobb v Hackett (1993) 10 WAR 532
Jvancich v Kennedy (No 2) [2004] NSWCA 397
Kozak v Matthews [2007] QSC 204
McCusker v Rutter [2010] NSWCA 318
Mitchell v Gard (1863) 164 ER 1280
Nicholls v Hall [2007] NSWCA 356
Re Sitch [2005] VSC 383
Reddie v Cornock [2005] NSWSC 187

Ritter v Godfrey [1920] 2 KB 47
Sherborne Estate (No 2): Vanvalen v Neaves (2005) 65 NSWLR 268
Singer v Berghouse (1993) 67 ALJR 708
Underwood v Underwood [2009] QSC 107

COUNSEL:

G Crow SC & A Arnold for the applicant

L Nevison for the respondent

SOLICITORS:

Johnson Law for the applicant

Rees R & Sydney Jones for the respondent

  1. McMeekin J:  On 12 December 2011 I provided the parties with my reasons for dismissing Mr Garry Dawson’s application for family provision under Part IV of the Succession Act 1981 (Qld).[1] I directed that the parties provide such submissions as they might be advised on any orders for costs that should be made.

    [1]            Dawson v Joyner  [2011] QSC 385.

  1. The applicant submits, notwithstanding his unsuccessful application, that his costs should be paid out of the deceased’s estate on the standard basis. The respondent contends that the costs in these proceedings should follow the event[2] and be paid on the indemnity basis after an offer was made by the respondent.

    [2] See r 681 Uniform Civil Procedure Rules 1999 (Qld).

Principles

  1. Costs may not always follow the event in family provision applications. All depends on the facts. This has long been recognised. As Gaudron J said in Singer v Berghouse:[3]

“In most cases, costs follow the event in the sense that, saving special or extraordinary circumstances, costs are awarded in favour of the successful party against the unsuccessful one.  ... even so, decisions [in family provision matters] involve a discretionary judgment of a very broad kind made by reference to the circumstances of the particular case and not by reference to a rule or rules which direct the decision one way or the other.

Family provision cases stand apart from cases…

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AGLC
Dawson v Joyner (No 2) [2011] QSC 403
Case
[2011] QSC 403
Decision Date

CaseChat Overview and Summary

The case of Dawson v Joyner (No 2) involved a dispute between the applicant, Dawson, and the respondent, Joyner, regarding a family maintenance and provision application. The matter was heard in a family court, where the applicant sought an order for financial support from the respondent. The central legal issue before the court was to determine the appropriate allocation of costs between the parties in light of the unsuccessful application. Specifically, the court needed to decide whether the standard basis or the indemnity basis should apply to the costs incurred by the respondent up until a specific date, and thereafter.

The court considered the principles governing costs in family law matters and examined the circumstances leading to the unsuccessful application. It was noted that the application was dismissed because it lacked sufficient evidence to substantiate the applicant's claims. The court further assessed the conduct of both parties throughout the proceedings, including their respective contributions to the length and complexity of the case. The court concluded that the respondent's costs should be awarded on the standard basis up until 16 June 2010, and on the indemnity basis thereafter. This decision was based on the applicant's failure to provide adequate evidence and the respondent's conduct during the proceedings.

The court's reasoning was grounded in the need to ensure that costs reflect the outcome of the litigation and the conduct of the parties. By awarding costs on the indemnity basis from 16 June 2010, the court emphasised the applicant's disproportionate role in prolonging the proceedings without merit. The final orders mandated that the applicant pay the respondent’s costs of and incidental to the proceeding, reflecting the court's determination on the appropriate cost allocation.

Orders

Orders of the court

That the applicant pay the respondent’s costs of and incidental to this proceeding:

on the standard basis up and until 16 June 2010; and(i)

on the indemnity basis thereafter.(ii)

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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