DISTRICT COURT OF QUEENSLAND
CITATION:
DW v RW (No 2) [2013] QDC 189
PARTIES:
DW
(applicant)V
RW (AS EXECUTOR OF THE WILL OF JW, DECEASED)
(respondent)FILE NO/S:
RD 54/2011
DIVISION:
Civil
PROCEEDING:
Originating application
ORIGINATING COURT:
Rockhampton
DELIVERED ON:
16 August 2013
DELIVERED AT:
Brisbane
HEARING DATE:
Decision on the papers
JUDGE:
Smith DCJ
ORDER:
1. That the Respondent’s costs of and incidental to the proceedings be assessed on an indemnity basis but are to be capped at $80,000.
2. The costs referred to in paragraph 1 be paid out of the estate of JW.
3. The Applicant’s costs of and incidental to the proceedings be assessed on an indemnity basis but are to be capped at $80,000.
4. The costs referred to in paragraph 3 be paid out of the estate of JW.
5. The parties have liberty to apply.
CATCHWORDS:
COSTS – Family Provision Application- whether costs should follow the event or some other order should be made- whether costs should be capped or fixed
Uniform Civil Procedure Rules 1999 (Q) Rules 681, 687, 700, 704
Balnaves v Smith [2012] QSC 408
Calderbank v Calderbank[1975] 3 All ER 333; [1975] 3 WLR 586
Caroll v Cowburn [2003] NSWSC 248
Foster v Lisle [2003] NSWSC 1243
Manly v The Public Trustee Qld [2007] QSC 388
Manly v The Public Trustee of Queensland (N0 2) [2008] QSC 47
Oshlack v Richmond River Council (1998) 193 CLR 72
Re Dallow [2006] QDC 3
Vanvalen v Neaves (2005) 65 NSWLR 268
Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521; (1993) 67 ALJR 708
COUNSEL:
Ms C. Brewer for the Applicant
Mr. S. Deaves for the Respondent
SOLICITORS:
Thynne and McCartney for the Applicant
Grant and Simpson for the Respondent
Introduction
On 19 July 2013 I delivered the decision in DW v RW [2013] QDC 163 in which I ordered that provision be made for the proper maintenance and support of DW out of the estate of JW by payment of a lump sum of $50,000.
The Respondent offered to settle the matter by the payment of $8,000 plus costs on 13 November 2012.
The Applicant offered to settle the matter by receipt of $120,000 plus costs of $32,000 on 20 November 2012.
The estate on the evidence lead at trial was worth some $323,000. I do note from the material that as at November 2012 excluding the Respondent’s legal costs for the family provision claim the net value of the estate was about $375,000.
The Applicant’s costs are said to be $105,203.95 (see Affidavit of Ms McNamara sworn 7 August 2013) and the Respondent’s costs- $60,000 excluding mediator’s fees (see [8] of the Respondent’s submissions). However I note that at the trial the Respondent said that his costs were $75,000 (T1-66.15).
I sought…
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- AGLC
- DW v RW (No 2) [2013] QDC 189
- Case
- [2013] QDC 189
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was the assessment of costs in family law proceedings, specifically within the context of a family provision application. The court needed to balance the principle that costs should generally follow the event with the need to protect the estates of the parties involved. The court also had to consider whether capping the costs was appropriate to prevent the dissipation of the estate.
The court held that the respondent's costs should be assessed on an indemnity basis but capped at $80,000. Similarly, the applicant's costs were also to be assessed on an indemnity basis but similarly capped at $80,000. Both sets of costs were to be paid out of the estate of JW. The court reasoned that while the principle of costs following the event was important, it was necessary to protect the estates from excessive costs that could potentially deplete the available assets. The court found that capping the costs at $80,000 was a fair and proportionate measure in the circumstances.
The final orders of the court were that the respondent's costs of and incidental to the proceedings be assessed on an indemnity basis but capped at $80,000, and that these costs be paid out of the estate of JW. Similarly, the applicant's costs of and incidental to the proceedings were to be assessed on an indemnity basis but capped at $80,000, with these costs also being paid out of the estate of JW. The parties were granted liberty to apply for further orders if necessary.
Orders
Orders of the court
1. That the Respondent’s costs of and incidental to the proceedings be assessed on an indemnity basis but are to be capped at $80,000.
2. The costs referred to in paragraph 1 be paid out of the estate of JW.
3. The Applicant’s costs of and incidental to the proceedings be assessed on an indemnity basis but are to be capped at $80,000.
4. The costs referred to in paragraph 3 be paid out of the estate of JW.
5. The parties have liberty to apply.
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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