Forster v Forster (No 2)

[2022] QSC 52

SUPREME COURT OF QUEENSLAND

CITATION:	Forster v Forster (No 2) [2022] QSC 52
PARTIES:	JAMES DERWENT CAMPBELL FORSTER
(applicant)
v ANNABEL LISA FORSTER
(respondent)
FILE NO/S:	12687/21
DIVISION:	Trial Division
PROCEEDING:	Costs decision after application refused
ORIGINATING	Supreme Court at Brisbane
COURT:
DELIVERED ON:	11 April 2022
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions received 22 March 2022 (respondent) and 29 March 2022 (applicant)
JUDGE:	Ryan J
ORDER:	The applicant is to pay the respondent’s costs of the
application on the standard basis
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS –
RELEVANT CONSIDERATIONS GENERALLY – where the
applicant’s application was dismissed – where the respondent
asked for her costs from the applicant on an indemnity basis
because the application: (a) involved the “wilful disregard of
clearly established law and groundless contentions”; or (b)
was made with an ulterior motive – whether an indemnity
costs order ought to be made
Uniform Civil Procedure Rules 1999 (Qld), r 700A(2)(b)(iii)
Forster v Forster [2022] QSC 30 Di Carlos v Dubois & Ors [2002] QCA 225 Colgate-Palmolive Company v Cussons Pty Limited (1993)
118 ALR 248
COUNSEL:	I Klevansky for the applicant C Brewer for the respondent
SOLICITORS:	The Estate Lawyers for the applicant Holding Redlich for the respondent

1. The respondent is the applicant’s step-mother. The applicant is one of three children of his father’s first marriage. The respondent has two children from her first marriage. There was no child of the marriage of the respondent and the applicant’s father.

2. After they married, the applicant’s father and the respondent entered into an agreement, known as a mutual wills agreement (‘MWA’), in pursuance of which they

   agreed to execute wills which would provide for the property of the first of them to

   die to pass, absolutely, to their survivor; and then, upon the survivor’s death, to their

   five children and step children equally.

3. The applicant’s father was the first spouse to die and the respondent inherited his

   estate in accordance with his mutual will. Under their MWA, the respondent was free to use up the inherited property (within certain limits) to preserve the lifestyle to which she was accustomed and to provide for her health and aged care.

4. More than once after his father’s death, the applicant asked the respondent to

   disclosure her financial position to him. She refused. The applicant brought an application seeking an order that she do so, under section 8 of the Trusts Act 1973 (Qld). On 8 March 2022, I dismissed his application: see Forster v Forster [2022] QSC 30. Speaking broadly, it was my view that the applicant misunderstood the

   “constructive trust” authorities upon which he relied in support of his application.

5. The respondent asked for her costs on the indemnity basis. I called for written submissions on the issue.

6. An order for costs on an indemnity basis is warranted where a litigant has engaged in unreasonable or irresponsible conduct; or where there is something about the facts

   and circumstances…