Edwards & Anor v. Caldwell & Anor

SUPREME COURT OF QUEENSLAND

CITATION:

Edwards & Anor v Caldwell & Anor [2007] QSC 048

PARTIES:

GRAHAM LESLIE EDWARDS and NOEL ARTHUR NAUMANN
(plaintiffs)
v
GRAHAM PERCIVAL ANDREW CALDWELL and BRAMLEY REGINALD MCLENNAN
(defendants)

FILE NO:

BS 2650 of 2003

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

1 March 2007

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

7 February 2007

JUDGE:

Douglas J

ORDERS:

1.   The Plaintiffs’ action is dismissed.

2.   On the Defendant’s Counter Claim, the Court does pronounce for the full force and validity of the Will of Clifford Andrew McLelland, deceased, dated 26 May 1994 in solemn form of law.

3. Probate of the Will of Clifford Andrew McLelland dated 26 May 1994 is granted to Graham Percival Andrew Caldwell and Bramley Reginald McLennan being the executors and the Defendants in this action, subject to the formal requirements of the Probate Registrar except the advertising requirements of UCPR r 599.

4.   The Plaintiffs deliver up to the Probate Registrar the original Will of Clifford Andrew McLelland dated 26 May 1994.

5.   The Plaintiffs pay the Defendants’ costs of and incidental to the said action (including the costs of this application and the costs referred to in the orders made herein on 3 August 2005 and 1 September 2005 and reserved costs if any) to be assessed on the indemnity basis, and not to be paid out of the Deceased’s estate.

6.   Liberty to apply.

7.   The balance of the Defendants’ Counterclaim is stood over to a date to be fixed.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION –PROBATE AND LETTERS OF ADMINISTRATION – COSTS – WHERE LITIGATION NOT CAUSED BY TESTATOR – UNNECESSARY LITIGATION – where plaintiffs brought a later will before the court – where will was found to be invalid – where plaintiffs persisted with unnecessary litigation – whether costs for frivolous action should be met by the estate.

Banks v Goodfellow (1870) LR 5 QB 549, cited

COUNSEL:

M D Ambrose for the plaintiff
S J Lee for the defendant

SOLICITORS:

Edgar and Wood for the plaintiff
Fox & Thomas for the defendant

1. Douglas J:  Clifford Andrew McLelland, the deceased, died on 8 August 2002.  This action commenced as an attempt to prove a will executed by him on 23 August 1999 but the plaintiffs do not now press that application and do not resist the defendants’ counterclaim that the court should order probate in favour of the earlier will of the deceased dated 26 May 1994.  The contentious issue remaining between the parties is that of costs.  The resolution of that issue will turn principally on whether I accept that the plaintiffs tried to prove the 1999 will in circumstances where they knew or should have known that the prospects of it being declared valid were hopeless, or that the action instituted by them was brought for a collateral purpose or had no chance of success.

Background

1. The plaintiffs are the executors of the 1999 will,…