DW v RW (No 2)

Case [2013] QDC 189

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

Collett v Knox [2010] QSC 132

Foster v Lisle [2003] NSWSC 1243

Gill v Smith [2007] NSWSC 832

Jones v Jones [2012] QSC 342

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

Underwood v Underwood [2009] QSC 342

Underwood and Anor v Sheppard [2010] QCA 76

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

  1. 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.

  1. The Respondent offered to settle the matter by the payment of $8,000 plus costs on 13 November 2012.

  1. The Applicant offered to settle the matter by receipt of $120,000 plus costs of $32,000 on 20 November 2012. 

  1. 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. 

  1. 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).

  1. I sought…

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Details
AGLC
DW v RW (No 2) [2013] QDC 189
Case
[2013] QDC 189
Decision Date

CaseChat Overview and Summary

The case of DW v RW (No 2) involved a dispute over costs in a family provision application. The applicant, DW, sought provisions from the estate of JW, with the respondent, RW, contesting the claim. The court was tasked with determining the appropriate costs order between the parties, considering whether the costs should follow the event or if an alternative order should be made. Additionally, the court had to decide whether the costs should be capped or fixed.

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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