SUPREME COURT OF QUEENSLAND
CITATION:
Frizzo & Anor v Frizzo & Ors (No 2) [2011] QSC 177
PARTIES:
SHANE DESMOND MATTHEW FRIZZO AND ALAN GRAHAM TAYLOR
(plaintiffs)
v
DEREK VICTOR KENNETH FRIZZO
(first defendant)
and
ROBERT SERGIO EMIDIO FRIZZO
(second defendant)
and
RENATO ADRIANO GABRIEL FRIZZO
(third defendant)
and
ROSANNA LYDIA ANGELA FRIZZO
(fourth defendant)FILE NO:
5422 of 2008
DIVISION:
Trial Division
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
22 June 2011
DELIVERED AT:
Brisbane
HEARING DATE:
Written submissions
JUDGE:
Applegarth J
ORDERS:
1. The parties’ costs of and incidental to the proceedings up to and including 29 April 2010 (including the costs of the caveators in Proceedings BS 3970 and 4680 of 2008 and BS 2651 of 2009) be assessed on the indemnity basis and be paid out of the estate of Lydia Iolanda Elvira Frizzo;
2. The costs of the first defendant, and the costs of the second, third and fourth defendants, of the proceedings from and including 30 April 2010 be assessed on the indemnity basis and paid by the plaintiffs;
3. Save to the extent that the costs of the first defendant and the costs of the second, third and fourth defendants are ordered to be paid by the plaintiffs pursuant to paragraph 2, and are actually recovered from the plaintiffs, their costs be assessed on the indemnity basis and paid out of the estate.
CATCHWORDS:
PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OUT OF A FUND – WHEN COSTS ALLOWED OUT OF FUND – LITIGATION CAUSED BY TESTATOR, EXECUTOR OR BENEFICIARY – EXECUTION OR REVOCATION OF WILL – CAVEATORS – where deceased dictated will in hospital – where first plaintiff propounded an earlier will under which he stood to receive larger share of estate – where dispute over testamentary capacity – where medical staff who took instructions for the later will were examined before Registrar – where expert appointed by the Court reviewed medical records and other evidence and delivered opinion as to testamentary capacity – where evidence strongly pointed to the deceased having testamentary capacity – where formal offer made to the plaintiffs after evidence taken before Registrar – where Calderbank offer was made shortly after receipt of report of Court-appointed expert – where plaintiffs continued to dispute will and obtained leave to adduce competing expert opinion at trial – where plaintiffs unsuccessful at trial – whether plaintiffs should be ordered to pay costs of final phase of proceedings
CASES:
Bool v Bool [1941] St R Qd 26 cited
Re Devoy [1944] St R Qd 1 cited
Dore (as executor of the will of W H B Chenhall, dec’d) [2006] QSC 140 cited
Fick v Groves (No 2) [2010] QSC 182 cited
Re Fogarty; Kovacs v Fogarty (No 2) [2007] ACTSC 40 followed
Frizzo v Frizzo [2011] QSC 107 cited
Harrison v Petersen [2000] QSC 415 cited
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 cited
Kostik v Chaplin [2007] EWHC 2909 (Ch)…
Continue reading Frizzo v Frizzo
Sign in free to access the full text
- AGLC
- Frizzo v Frizzo (No 2) [2011] QSC 177
- Case
- [2011] QSC 177
- Decision Date
CaseChat Overview and Summary
The court considered the general rule that costs follow the event and the specific circumstances where costs may be allowed out of a fund, particularly when the litigation was caused by a testator, executor, or beneficiary. It was noted that the plaintiffs had continued to dispute the validity of the will and obtained leave to present a competing expert opinion at trial, despite a formal offer and a Calderbank offer being made. The court found that the evidence strongly supported the deceased's testamentary capacity and the plaintiffs' persistence in contesting the will after these offers were made was unreasonable. Consequently, the court decided that the costs from the final phase of the proceedings should be borne by the plaintiffs.
In light of the court's reasoning, it ordered that the costs of the proceedings up to a certain date be paid out of the estate, while the costs from that date onwards were to be paid by the plaintiffs. This decision reflects the court's approach to balancing the equities in the allocation of costs, particularly in cases involving the administration of estates and disputes over testamentary capacity. The final orders mandated that the plaintiffs' costs, except for those already determined to be paid by the defendants, be assessed and paid out of the estate, with the defendants' costs from a specific date onwards being paid by the plaintiffs.
Orders
Orders of the court
1. The parties’ costs of and incidental to the proceedings up to and including 29 April 2010 (including the costs of the caveators in Proceedings BS 3970 and 4680 of 2008 and BS 2651 of 2009) be assessed on the indemnity basis and be paid out of the estate of Lydia Iolanda Elvira Frizzo;
2. The costs of the first defendant, and the costs of the second, third and fourth defendants, of the proceedings from and including 30 April 2010 be assessed on the indemnity basis and paid by the plaintiffs;
3. Save to the extent that the costs of the first defendant and the costs of the second, third and fourth defendants are ordered to be paid by the plaintiffs pursuant to paragraph 2, and are actually recovered from the plaintiffs, their costs be assessed on the indemnity basis and paid out of 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.