Gander v Gander

[2025] QDC 139

DISTRICT COURT OF QUEENSLAND

CITATION: 

Gander & Anor v Gander & Anor [2025] QDC 139

PARTIES: 

MICHAEL JOHN GANDER (UNDER PART IV, SECTIONS 40-44, SUCCESSION ACT 1981)

(First Applicant)

And

SUSAN COURTNEY GANDER (UNDER PART IV, SECTIONS 40-44, SUCCESSION ACT 1981)

(Second Applicant)

v

STEVEN GANDER (AS PERSONAL REPRESENTATIVE OF BRIDGET GANDER DECEASED)
(Respondent)

FILE NO:

2062/24

DIVISION:

 Civil

PROCEEDING:

 Application

ORIGINATING COURT: 

 District Court at Brisbane

DELIVERED ON:

 3 October 2025

DELIVERED AT:

Brisbane

HEARING DATE: 

 Friday 26 September 2025 (on the papers)

JUDGE:

Porter KC DCJ

ORDER:

1.          The application filed 5 September 2025 to set aside the costs order made by Barlow DCJ on 16 December 2024 be dismissed.

2.          The respondent Steven Gander pay the applicants’ costs of that application.

The factual and procedural background

1. On 26 July 2024, the applicants filed an originating application under s. 41(1) Succession Act 1981 (Qld) for further provision out of the estate of their mother Bridget Gander, who died on 28 October 2023. Although no grant of representation has been made to the respondent, he has been made the respondent as personal representative under the deceased’s will. The parties appear to have proceeded thereafter on that basis. The respondent is the son of the deceased.

2. On 31 October 2024, the respondent applied for summary dismissal of the originating application.  The application for summary dismissal was heard by Barlow KC DCJ on 16 December 2024.  The gravamen of the respondent’s submission was that the proceedings should be dismissed as an abuse of process because there were no funds in the estate out of which provision could be made and further that the applicants did not show relevant need.  The gravamen of the applicants’ submission was that there was a dispute on the evidence as to the assets of the estate and so summary dismissal was not justified. 

3. His Honour dismissed the application for summary dismissal.  He also ordered that the proceeding be stayed until further order and that the respondent pay the applicant’s costs of the application (the costs order).  No appeal was brought against those orders. 

4. No party has referred me to reasons given by his Honour on 16 December 2024.  However, on the submissions put before his Honour, his Honour’s orders seem correct.  Summary dismissal of a family provision application will not ordinarily occur where there are disputed facts material to the basis of dismissal.  Further, there is nothing unusual about an order that costs follow the event, even allowing for the particular issues which can sometimes arise on costs orders in family provision cases.

5. On 9 July 2025, the applicants served a costs statement on the respondent.  On around 31 July 2025, the respondent filed and served objections to the costs statement.  The objections dealt in part with the issues raised on the costs statement but also reiterated the respondent’s contention that the estate was insolvent.  The objections were supported by an affidavit which went well beyond any issue legally relevant to the objections.  The affidavit, amongst other matters, ventilated the respondent’s complaints about the applicants’ allegations as to the funds in the estate being diverted to the respondent. It also alleged breaches of the Privacy Act 1988 (Cth), the personal and financial support he provided his mother over her lifetime, errors by Judge Barlow and the applicants’ lawyers and sought a variety of extravagant orders which could not be made in a costs assessment.

6. The respondent’s 31 July affidavit reveals a lack of understanding of basic principles of civil litigation. While that is understandable for a litigant in person, it remains that case that the affidavit is misconceived. Further, to the extent it seeks to raise matters relevant only to the applicants’ claim for relief under s. 41(1), it is in breach of the stay imposed by his Honour of those proceedings on 16 December 2024.

7. On 1 August 2025, the respondent filed a notice of acting in person, though I infer he was responsible for the 31 July affidavit and objection.

8. On 29 August 2025, the applicants’ filed an application for the appointment of a costs assessor.  The supporting affidavit was brief and swore to the costs order, the costs statement, the costs objection and the lack of agreement at the date of the affidavit regarding an assessor.  That application was listed for hearing on 29 August 2025.  I do not know if an order appointing an assessor was made, though that issue does not currently arise.

9. On 5 September 2025, the respondent filed an application in the proceedings.  The application was in the following form:

   The Applicant applies to the Court for the following orders:

   1.That Order 4 of the Honourable Justice [sic Judge] Barlow KC made on 16 December 2024 be stayed or set aside pursuant to rule 667 of the Uniform Civil Procedure Rules 1999 (Qld).

   2.That the Applicant’s application for the appointment of a cost’s assessor pursuant to rule 713 UCPR be dismissed.

   3.That no costs be awarded against the Applicant in relation to this application.

Grounds on Which the Orders Are Sought:

1.   The Applicant is the executor of the estate of Bridget Gander and has acted throughout in good faith, without personal gain, and in accordance with his fiduciary duties.

2.   The costs order made on 16 December 2024 was obtained in circumstances where the Applicant’s consent was either misrepresented or not properly obtained, and the order was made without full consideration of the executor’s statutory protections under Queensland succession law.

3.   The Applicant is entitled to immunity from adverse costs orders in his capacity as executor, particularly where he has not acted unreasonably or in breach of duty.

4.   The costs claimed by the Applicants are excessive, disproportionate, and not reasonably incurred in the context of estate administration.

5. The appointment of a costs assessor under rule 713 UCPR is predicated on the validity of the underlying costs order, which is now challenged.

6. Fresh evidence has emerged demonstrating procedural irregularities, reputational harm, and financial prejudice suffered by the Applicant, warranting reconsideration of the order under rule 668 UCPR.

1. That application was made returnable on 11 September.  It was supported by an affidavit which made the following principal allegations:

   (a)The respondent has acted in good faith and consistent with his fiduciary duties as executor;

   (b)His Honour’s costs order was made without the respondent’s consent properly obtained nor was he given an opportunity to contest the order;

   (c)The respondent is entitled to immunity from adverse costs orders under s. 53(2) Succession Act absent failure to act reasonably and cannot be personally liable for acts as executor; and

   (d)Fresh evidence has emerged since 16 December 2024 demonstrating “procedural irregularities, reputational harm and financial prejudice”.

2. The respondent’s application came before Judge Sheridan of this Court on 12 September 2025.

3. The respondent attended by telephone.  The applicants were represented by their solicitor.  The applicants’ solicitor was willing to proceed and flagged that on the material before the Court, the respondent did not make out any basis to set aside the costs order.  He explained his submission that nothing in the respondent’s material engaged the grounds for setting aside an order under the relevant rules, being Rules 667 and 668 Uniform Civil Procedure Rules 1999 (Qld) (UCPR).  It is not necessary to outline those submissions, except to note that the solicitor specifically observed that the fresh evidence alleged was not identified, and even if it was, a reason for it not to have been put before the Court at the original hearing was not provided.[1]

   [1] TS1-14 to 1-16.

4. Her Honour then explained to the respondent the difficulty in setting aside an order made some 6 months prior which had not been appealed. The respondent answered by speaking about his dealings with his solicitors and the applicants’ solicitors.  This went on for some time and seemed to focus on his dissatisfaction with the outcome of the hearing.[2]  Ultimately, her Honour made clear that nothing in his existing material justified setting aside the costs order but offered the respondent the opportunity to adjourn the matter and put on further material.  Her Honour put the respondent on notice that if he continued with his application, he might be exposed to a costs order.[3]

   [2] TS1-18 to 1-23.

   [3] TS1-35 to 1-36.

5. Her Honour made the following orders:

   1.The application is adjourned to a date to be fixed but such date shall be no later than Friday 26 September 2025.

   2.If the respondent wishes to withdraw the application, a notice of withdrawal must be filed in the registry and served on the applicants by 4:00pm Friday 19 September.

   3.If the application by the respondent is to be pursued, then any further affidavits must be filed in the registry and served by the respondent by 4:00pm Friday 19 September 2025.

   4.If no further affidavits are filed in the registry by the respondent in support of the application by 4:00pm Friday 19 September 2025, the application is dismissed.

   5.If the application is withdrawn in accordance with order 2 or dismissed in accordance with order 4, the parties are to file by emailing the Associate to her Honour Judge Sheridan, and serve on the other party, submissions as to costs of no more than two pages in length, by 4:00pm Friday 26 September 2025.

   6.Any material filed by the respondent is to be served on the applicants by email to the applicants’ solicitors at the following address: [email protected]

   7.Any material filed by the applicants is to be served on the respondent by email to the respondent at the following address: [email protected]

6. On 19 September 2025, the respondent filed a notice of withdrawal of application and a further affidavit, seemingly taking both courses contemplated by orders 2 and 3.  An outline of argument was also filed. 

7. The status of the withdrawal document was explained by the respondent in an email sent to Judge Sheridan’s Associate on Saturday 20 September 2025 and copied to the applicants’ solicitors.  That email stated that the respondent had not served the withdrawal and that it had been prepared as a discretionary safeguard.  That proposition and the other statements made in that email were misconceived.  In any event, the email communicated that the respondent intended to press his application to set aside the costs order.   

8. On 23 September 2025, the applicant’s solicitors sent an email to her Honour’s Associate confirming they were ready to proceed with the respondent’s application and seeking a hearing date later in the week (bearing in mind her Honour’s order that the matter be heard by 26 September). 

9. At 12.54am on Wednesday 24 September 2025, the respondent sent another email to Judge Sheridan’s Associate.  The Court did not invite that correspondence nor did the respondent write with the consent of the other party.  Indeed, he did not send the email to the other side at all.  The email attached numerous documents including affidavits previously filed, financial documents including bank statements, correspondence and a response to the costs assessor, Mr Robinson.  The covering email, inter alia, provided personal information about the respondent relevant to the proceedings which ask that the information “remain strictly private and confidential, for Her Honour Judge Sheridan only”.  It was unclear if that applied to all the attached documents, but a key submission was marked for her Honour only.

10. A Court cannot act on evidence or submissions which are not provided to both sides in a matter.  It is a fundamental breach of the rules of procedural fairness to do so and it is apt to cause the other party to question the objectivity and impartiality of the Court.[4]  It also frustrates the fair determination of proceedings by preventing the Court from having contrary evidence or submissions from the other side which can put evidence or submissions in a different perspective.

    [4] Legal Services Commissioner vTrost [2019] QCAT 357 at [41].

11. Those fundamental principles are reflected in the statutory ethical duties of solicitors and barristers.  It is sufficient to set out the relevant rule from the Australian Solicitors Conduct Rules (ASCR) which relevantly provides:

    22.5 A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent's absence with the court concerning any matter of substance in connection with current proceedings unless--

    22.5.1 the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court, or

    22.5.2 the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.

22.6 A solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication referred to in Rule 22.5.

22.7 A solicitor must not raise any matter with a court in connection with current proceedings on any occasion to which an opponent has consented under Rule 22.5.2 other than the matters specifically notified by the solicitor to the opponent when seeking the opponent's consent.

1. The respondent is self-represented.  He is not bound by these rules.  However, non-compliance with the restrictions in r. 22.5 have consequences in law of the kind outlined in paragraph [19] above, especially where a party is self-represented and not constrained by ethical duties.   

2. It is a further consequence of those principles that a litigant cannot unilaterally impose an obligation of confidence on the Court in relation to such a communication.  The respondent was told exactly that in writing by her Honour’s Associate by email on 12 September 2025.  On that day, at 8.48am, the respondent sent an email to the Associate asking permission to submit a confidential summary to her Honour for consideration.  The Associate responded at 9.10am that it would not be appropriate for her Honour to accept any material without the respondent being copied in or the material being tendered in open Court.  His email sent on 24 September set out in paragraphs [18] above, must have been written knowing of that advice.  The communications from the respondent contain evidence and submissions not previously contained in any affidavit or outline filed in his application.  Providing that material was also inconsistent with her Honour’s orders which required any further affidavit to be filed by Friday 19 September.  The communication was in breach of that order.

3. On Wednesday, 24 September Deputy Registrar Campbell sent an email seeking to confirm a date for the hearing of the respondent’s application.  The respondent referred the Deputy Registrar to Judge Sheridan’s Associate.  The implication presumably was that he would not attend the further hearing.  On Wednesday afternoon the Deputy Registrar specified that the matter would be heard on the papers on Friday 26 September and that the applicants could file a further outline, which they did.  The matter was referred to me for hearing.

The costs order should not be set aside

1. Rules 667 and 668 UCPR deal with the circumstances in which the Court may vary or set aside an order. Rule 667(1) applies only where the application is brought within 7 days of making the order. It cannot apply here.

2. Rule 667(2) provides:

   (2)The court may set aside an order at any time if—

   (a)     the order was made in the absence of a party; or

   (b)    the order was obtained by fraud; or

   (c)     the order is for an injunction or the appointment of a receiver; or

   (d)    the order does not reflect the court’s intention at the time the order was made; or

   (e)     the party who has the benefit of the order consents; or

   (f)   for a judgment for specific performance, the court considers it appropriate for reasons that have arisen since the order was made.

3. Rule 668 only applies, in effect, if facts arise or are discovered after an order is made that entitle a person to relief from the order.

4. In the respondent’s first affidavit filed 5 September 2025, the respondent relied on the matters set out in paragraph [10] above.  None of those matters properly engage rr. 667(2) or 668.  The matters in (a) to (c), if correct, might give rise to grounds of appeal, but they do not engage the Court’s power to set aside or vary the costs order.  The matter in paragraph (c) might do so if the real complaint is that the order was made in the respondent’s absence.  However, while it appears he was not present at the hearing, he was present by his solicitors and barrister. 

5. The matters raised are in any event wrong in law.  The Court has power to order costs against a personal representative and such an order binds the personal representative personally and in relation to the whole of the personal representative’s assets.  The personal representative is however, entitled to indemnity from the estate for a costs liability incurred while acting as such unless they have acted unreasonably.  The costs order says nothing about the entitlement to indemnity and does not involve a finding that the respondent acted unreasonably.  It merely orders costs against the personal representative.  The fact that the indemnity might not be a valuable one is a matter for the personal representative, not the applicants.  The cases and statutes referred to in paragraph 7 of the resdponent’s 19 September affidavit are consistent with that analysis. 

6. Re Fuld [1968] P 675 is concerned with the entitlement to indemnity from estate assets of an executor holding probate. Re Beddoe [1893] 1 Ch 547 provides that where an executor obtains a direction from the Court that he or she is authorised and justified in pursuing or defending litigation, he or she is protected from allegations of breach of duty in doing so if full disclosure is made to the Court. In these circumstances, an executor is entitled to indemnity from the estate where an adverse costs order is made. Here, the respondent did not seek any such direction to protect his entitlement to indemnity. Section 53(2) Succession Act deals with protecting the validity of payments in good faith by an executor under a grant of probate where the grant is shown to be invalid or is set aside.  That has no application here.

7. Finally, I refer to the matter in paragraph [10](d) above.  As the solicitors for the applicants submitted, in the absence of details, nothing in that general assertion justifies recourse to r. 668.

8. I now turn to the further submissions filed on 19 September and the supporting affidavit. Those submissions tend to repeat the submissions outlined in paragraph [10]. So far as I can determine, the only material addition is an allegation that that an affidavit of a person other than the applicants filed in the proceedings contained misrepresentations, that “a document used in Court” omitted a critical page and that the applicants’ evidence misrepresented his conduct. These allegations fall far short of showing that the costs order was obtained by fraud. To set aside the order on the fraud exception the application must show that:[5]

   (a)The evidence involving fraud must be newly discovered since the hearing;

   (b)The evidence could not have been found at the time of the hearing by using reasonable diligence;

   (c)The evidence was so material that it would probably have affected the outcome; and

   (d)If there was perjury, the evidence was so strong that it would be decisive at a rehearing.

   [5] Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1992) 37 FCR 234 at 241.

1. The respondent’s vague allegations fail to meet these requirements.

2. The balance of the affidavits and submissions filed by the respondent involve attempts to reagitate the same issues as those agitated in the summary dismissal application namely, that the estate is insolvent and that the applicants should accept that as correct.  They also reagitate the other complaints that the respondent has about the allegations by the applicants as to his involvement in his mother’s affairs.  Those are matters for the trial of the originating application.  The real difficulty which the respondent had before Judge Barlow, and still has on this application, is that he does not understand that conflicting allegations are to be resolved at trial, not in interlocutory applications.

3. There is no basis in the material for the costs order to be set aside.  The application is dismissed.

4. In reaching this conclusion, I have not considered the material referred to in paragraph [18] above for the reasons given in paragraphs [19] to [22].    Additionally, that material (to the extent it is new) was provided in breach of the orders made by her Honour for the filing of material to be relied upon by the respondent on the further hearing of his application and there is no good reason to ignore that breach and receive that further material.

Material on the application

1. Given the informal manner in which the application developed, I specifically identify the material I have relied upon. 

2. As the application involved a challenge to Judge Barlow’s costs order, I have considered the material read before his Honour being Court Documents 2, 3, 4, 5, 7, 13 and 15 along with the outlines filed at Court Documents 12 and 14.  It was impossible to understand the respondent’s arguments without having regard to that material.  I also had regard to his Honour’s orders.

3. I had regard to Mr Gander’s application and supporting material filed in Court being Court Documents 23, 24, 27, 28 and 29.  I also had regard to the submissions from the applicants dated 25 September which I have placed on the file.

4. I have also had regard to a transcript of the hearing before her Honour which I have marked Exhibit 1 and her Honour’s orders.  I could not put the further material sent by Mr Gander after that hearing in context without having regard to that transcript.

5. I have also had regard to several of the documents which the respondent sent to her Honour’s Associate and to the Deputy Registrar with the intention that they be considered in the application, despite the irregular nature of that correspondence.  However, I have not considered everything, only the communications which appeared relevant to this application.

6. I considered the email correspondence discussed in paragraphs [16] (Exhibit 2), [17] (Exhibit 3), [22] (Exhibit 4) and [23] (Exhibit 5).

7. Finally, I refer to the email and attachments noted at [18]. For the reasons given above, I did not act on that communication in deciding this application. I considered it only insofar as necessary to identify that it contained new evidence not previously filed and to note that the “Executor Withdrawal and Procedural Record” document contained no submissions which assisted the respondent in his attempt to set aside the costs order. Indeed, those submissions show an inability in the respondent to appreciate the issues which arose on his application. The email and attachments are Exhibit 6 in this application.

The respondent’s communications with the Court  

1. The respondent informed her Honour that he had asked his solicitors if he could appeal, and they said no.  He said he received no advice about the matter, just a refusal.  Whether that is a fair reflection of what he was told, it is plain he knew his solicitors would not appeal.  He chose not to appeal in those circumstances.

2. He then pursued this application to re-open the costs order.  Almost from the filing of his application, there was a constant stream of communications with the Associate to Judge Sheridan and to the Civil List Manager.  Ultimately, the respondent was instructed to send emails only to the Deputy Registrar as a way of controlling his constant stream of communications.

3. I can see from the respondent’s affidavits and the communications that he is very emotional about the issues relating to the originating application and to his mother’s estate.  That emotion seems to be the principal cause of his communications with the Court.  However, it is no excuse for doing so.  The respondent’s communications are almost always not properly made.  They absorb the time and resources of the Court to no purpose.  They cause confusion in the conduct of the proceedings and put the applicants to unnecessary costs.   

4. It also seems that the respondent does not understand how legal proceedings are conducted.  Litigation cannot go on forever.  As a general rule, parties get one chance to put on evidence and submissions.  Once the hearing is over, no more evidence or submissions are ordinarily permitted, and none are permitted without the Court’s direction.  These are necessary disciplines that allow matters to be resolved and disputes to be finalised. 

5. For these reasons, the respondents repetitive communications with the Court must end. 

6. To ensure that occurs, the respondent should not communicate with an Associate of the District Court or an officer of the District Court, including sending any email or telephoning, that concerns any matter of substance in connection with proceedings 2062/24 or any other proceeding, outside of a hearing in Court of which the applicants have been had sufficient notice unless:

   (a)The Court has first communicated with the respondent in such a way as to require him to respond to the Court, or

   (b)The applicants or their solicitors have consented to the respondent communicating with the court in specific terms and have given their consent before the respondent communicates with the Court.

7. To avoid any doubt in Mr Gander as to what he should be doing in the future, I make the following points:

   (a)A prohibition on communicating about any matter of substance prohibits sending any communication which contains evidence, submissions, arguments or complaints about the proceedings;

   (b)It does not prohibit communicating about purely procedural matters. That means dates and times for hearings or requests for a matter to be listed for directions, or requests to attend by video link at a hearing.  Of course, there must be a proper reason for any such a request, and such requests cannot include arguments or evidence;

   (c)The exception in [48](a) refers to when the Court invites the respondent to communicate about a matter or makes an order authorising a communication;

   (d)The exception in [48](b) means what is says.  The respondent cannot communicate about any matter of substance without the agreement of the applicants.  They can therefore stop such a communication occurring.  If that occurs and the respondent wants to mention a matter in Court, he should approach the Court for a date for the matter to be mentioned before a Judge with the applicants presence.  However, no such mention should be sought except for a proper reason.   

8. If the respondent does not respect these limitations, it might be necessary to make formal Court orders imposing those limitations.  Failure to comply with such orders, if made, can be a contempt of Court which can result in fines or imprisonment.

9. I urge Mr Gander to respect the limitations set out in paragraph [48]. A good start would be to not communicate about this judgment. His application to set aside the costs order is at an end. If he is dissatisfied, he can appeal.

Costs

1. The applicants seek costs of the application to set aside the costs order.  The respondent’s position on 16 September 2025 was hopeless, as the applicants’ solicitor explained.  Her Honour explained the risk of a costs order if he persisted.  He persisted, despite her Honour’s warning.  The respondent must pay the applicants’ costs of the proceedings.  It would have been open to the Court on this application to order costs on the higher indemnity basis.  I do not do so on this occasion, but if Mr Gander pursues any other hopeless proceedings or applications, costs on the indemnity basis will likely follow.