Edwards & Anor v. Caldwell & Anor - [2007] QCA 285

SUPREME COURT OF QUEENSLAND

CITATION:

Edwards & Anor v Caldwell & Anor [2007] QCA 285

PARTIES:

GRAHAM LESLIE EDWARDS
(appellant/plaintiff)
NOEL ARTHUR NAUMANN
(appellant/plaintiff)
v
GRAHAM PERCIVAL ANDREW CALDWELL
(respondent/defendant)
BRAMLEY REGINALD MCLENNAN
(respondent/defendant)

FILE NO/S:

Appeal No 2739 of 2007
SC No 2650 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2007

JUDGES:

Jerrard and Keane JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal allowed
2. Set aside order number 5 made on 1 March 2007
3. The appellants’ costs of and incidental to the action assessed on the standard basis be paid out of the deceased’s estate in respect of costs incurred before 30 June 2004, but not thereafter
4. The appellant Graham Leslie Edwards pay the respondents’ costs of and incidental to the 1 March 2007 proceedings on an indemnity basis in respect of costs incurred on and from 1 July 2004
5. The respondents pay the appellants’ costs of the appeal, assessed on the standard basis which costs the respondents can recoup from the estate

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – EXECUTORS AND ADMINISTRATORS – EXECUTORS AND ADMINISTRATORS – PROCEEDINGS AGAINST EXECUTORS AND ADMINISTRATORS – where the appellants are the executors of a Will – where the appellants attempted to prove the Will – where the leaned trial judge concluded that the appellants should have known the action was bound to fail – where the learned trial judge drew inferences against the appellants in coming to the conclusion – where the learned trial judge ordered that the appellants pay the respondents’ costs of the action on an indemnity basis, and not to be paid out of the estate – whether the learned trial judge erred in making the costs order

In the Estate of Barlow [1919] P 131, considered

COUNSEL:

H B Fraser QC, with M D Ambrose, for the appellants
D O J North SC, with S Lee, for the respondents

SOLICITORS:

Edgar & Wood for the appellants
Fox & Thomas Pty Ltd for the respondents

JERRARD JA: This appeal is, by leave granted on 21 March 2007 by the trial judge, against an order for costs made by a learned judge of this Court on 1 March 2007. The costs orders against the appellant plaintiffs were made against them as the purported executors of a Will executed on 23 August 1999 (“the 1999 Will”) by the deceased Clifford Andrew McLelland, which Will the plaintiffs had attempted unsuccessfully to prove. The orders made on 1 March 2007 included orders on the respondent defendant’s counter claim, in which the learned judge pronounced for the full force and validity of a Will of the deceased dated 26 May 1994, (“the 1994 Will”) in solemn form of law, and granted probate of that Will to the respondents. The learned judge…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] QCA 285
Decision Date: 31 August 2007

CaseChat Overview and Summary

The matter before the court involved a dispute between the executors of a will, Edwards and another, and the respondents, Caldwell and another. The executors had attempted to prove the will but were unsuccessful. The trial judge concluded that the executors should have known that their action was bound to fail and made an order that the executors pay the respondents’ costs on an indemnity basis, not to be paid out of the estate. The executors appealed against this order. The legal issues before the court were whether the trial judge erred in making the order and whether the executors should have known that their action was bound to fail.

The court found that the trial judge had erred in making the costs order as the executors had not acted unreasonably in attempting to prove the will. The court held that the executors had acted in good faith and had not acted recklessly or negligently. The court further held that the executors should not be penalised for their unsuccessful attempt to prove the will and that the order should not be paid out of the estate. The court held that the executors’ costs of and incidental to the action should be assessed on the standard basis and paid out of the deceased’s estate in respect of costs incurred before 30 June 2004, but not thereafter. The court also held that Graham Leslie Edwards should pay the respondents’ costs of and incidental to the 1 March 2007 proceedings on an indemnity basis in respect of costs incurred on and from 1 July 2004. Finally, the court held that the respondents should pay the appellants’ costs of the appeal, assessed on the standard basis which costs the respondents can recoup from the estate.

The court allowed the appeal, set aside the order made on 1 March 2007, and made orders for the assessment of costs. The court held that the trial judge had erred in making the costs order and that the executors had not acted unreasonably in attempting to prove the will. The court held that the executors should not be penalised for their unsuccessful attempt to prove the will and that the order should not be paid out of the estate. The court also held that the executors’ costs of and incidental to the action should be assessed on the standard basis and paid out of the deceased’s estate in respect of costs incurred before 30 June 2004, but not thereafter. Finally, the court held that Graham Leslie Edwards should pay the respondents’ costs of and incidental to the 1 March 2007 proceedings on an indemnity basis in respect of costs incurred on and from 1 July 2004 and that the respondents should pay the appellants’ costs of the appeal, assessed on the standard basis which costs the respondents can recoup from the estate.

Orders

Orders of the court

1. Appeal allowed

2. Set aside order number 5 made on 1 March 2007

3. The appellants’ costs of and incidental to the action assessed on the standard basis be paid out of the deceased’s estate in respect of costs incurred before 30 June 2004, but not thereafter

4. The appellant Graham Leslie Edwards pay the respondents’ costs of and incidental to the 1 March 2007 proceedings on an indemnity basis in respect of costs incurred on and from 1 July 2004

5. The respondents pay the appellants’ costs of the appeal, assessed on the standard basis which costs the respondents can recoup from the estate

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Edwards & Anor v Caldwell & Anor [2007] QCA 285
PARTIES:	GRAHAM LESLIE EDWARDS (appellant/plaintiff) NOEL ARTHUR NAUMANN (appellant/plaintiff) v GRAHAM PERCIVAL ANDREW CALDWELL (respondent/defendant) BRAMLEY REGINALD MCLENNAN (respondent/defendant)
FILE NO/S:	Appeal No 2739 of 2007 SC No 2650 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	31 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	8 August 2007
JUDGES:	Jerrard and Keane JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed 2. Set aside order number 5 made on 1 March 2007 3. The appellants’ costs of and incidental to the action assessed on the standard basis be paid out of the deceased’s estate in respect of costs incurred before 30 June 2004, but not thereafter 4. The appellant Graham Leslie Edwards pay the respondents’ costs of and incidental to the 1 March 2007 proceedings on an indemnity basis in respect of costs incurred on and from 1 July 2004 5. The respondents pay the appellants’ costs of the appeal, assessed on the standard basis which costs the respondents can recoup from the estate
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – EXECUTORS AND ADMINISTRATORS – EXECUTORS AND ADMINISTRATORS – PROCEEDINGS AGAINST EXECUTORS AND ADMINISTRATORS – where the appellants are the executors of a Will – where the appellants attempted to prove the Will – where the leaned trial judge concluded that the appellants should have known the action was bound to fail – where the learned trial judge drew inferences against the appellants in coming to the conclusion – where the learned trial judge ordered that the appellants pay the respondents’ costs of the action on an indemnity basis, and not to be paid out of the estate – whether the learned trial judge erred in making the costs order In the Estate of Barlow [1919] P 131, considered
COUNSEL:	H B Fraser QC, with M D Ambrose, for the appellants D O J North SC, with S Lee, for the respondents
SOLICITORS:	Edgar & Wood for the appellants Fox & Thomas Pty Ltd for the respondents