Dawson v Joyner (No 2)

Case [2012] QSC 24

SUPREME COURT OF QUEENSLAND

CITATION:

Dawson v Joyner (No 2)  [2012] QSC 24

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)

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 r681 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…

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AGLC
Dawson v Joyner (No 2) [2012] QSC 24
Case
[2012] QSC 24
Decision Date

CaseChat Overview and Summary

The Dawson v Joyner (No 2) case involved an application for family maintenance and provision by the applicant against the respondent. The application was unsuccessful, and the court was required to determine the appropriate basis for awarding costs to the respondent. The court considered the unsuccessful nature of the application and the conduct of the parties throughout the proceedings.

The legal issues before the court involved determining the appropriate basis for awarding costs to the respondent. The court had to consider the unsuccessful nature of the application and the conduct of both parties during the proceedings. The court also had to decide if the applicant's conduct warranted indemnity costs.

The court found that the applicant's application was unsuccessful and, therefore, the respondent was entitled to costs. The court also found that the applicant's conduct throughout the proceedings was unreasonable and vexatious, warranting indemnity costs. The court awarded costs on the standard basis up until 16 June 2010 and on the indemnity basis thereafter.

The orders of the court were 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 on the indemnity basis thereafter. The court considered the unsuccessful nature of the application, the conduct of the parties, and the reasonableness of the applicant’s conduct in making its decision.

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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