Fradgley v Pocklington (No 2)

[2011] QSC 355

SUPREME COURT OF QUEENSLAND

CITATION:

Fradgley v Pocklington (No 2) [2011] QSC 355

PARTIES:

JOHN WILLIAM FRADGLEY AS EXECUTOR OF THE ESTATE OF MICHEL ISOBEL ROSE DRAKE
(plaintiff)
v
JO ANNE POCKLINGTON
(defendant)

FILE NO:

BS 4788 of 2009

DIVISION:

Trial Division

PROCEEDING:

Submissions on costs

DELIVERED ON:

30 November 2011

DELIVERED AT:

Brisbane

HEARING DATE: 

Defendant’s submissions filed on 2 September 2011, plaintiff’s submissions filed on 4 October 2011, defendant’s response to the plaintiff’s submissions delivered 5 October 2011     

JUDGE:

Mullins J

ORDER:

1.  The court pronounces against the force and validity of the will of the late Michel Isobel Rose Drake dated 6 December 2007.
2.  Subject to the formal requirements of the Registrar, but dispensing with the need for advertising the notice of intention to apply for the grant, a grant of probate for the will of the late Michel Isobel Rose Drake dated 1 June 1999 be made to the   defendant solely in common form of law.
3.  The plaintiff’s costs of the proceeding to and including 8 September 2010 be assessed on the indemnity basis and paid from the estate, but otherwise the plaintiff not have recourse to the estate for his costs of the proceeding.
4. Pursuant to s 253 of the Supreme Court Act 1995, leave to appeal the order for costs made in this proceeding is given to each party, if required.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – PROBATE AND LETTERS OF ADMINISTRATION – COSTS – where litigation caused by testator, executor or persons interested – where testator lacked testamentary capacity at the time she made the 2007 will – where plaintiff was the solicitor who prepared the 2007 will and was named as executor under that will – whether it was reasonable for the plaintiff to seek to prove the 2007 will – where defendant had made a generous offer to compromise the proceeding to prove the 2007 will – whether the plaintiff’s conduct of the proceeding to prove the 2007 will affected his claim for his costs to be paid from the estate
  
Uniform Civil Procedure Rules 1999, r 599, r 681

Brown v Sandhurst Trustees Ltd (No 2) [2009] VSC 406, followed
Edwards v Caldwell [2007] QSC 48, considered
Edwards v Caldwell [2007] QCA 285, considered
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, followed
Middlebrook v Middlebrook (1962) 36 ALJR 216, considered
Pates v Craig & Anor; Estate of Cole deceased (NSWSC, 5 September 1995, unreported), considered
Public Trustee v Till [2001] 2 NZLR 508, considered

COUNSEL:

R D Peterson for the plaintiff
D J Morgan for the defendant

SOLICITORS:

Bell Legal Group for the plaintiff
Gleeson Lawyers for the defendant

1. The reasons for judgment in which I dismissed the plaintiff’s claim were published on 10 August 2011:  Fradgley v Pocklington [2011] QSC 227 (the reasons). On that day the proceeding was adjourned to a date to be fixed for submissions on the terms of additional orders…