Greer v Greer

Case [2021] QCA 174

SUPREME COURT OF QUEENSLAND

CITATION:  Greer v Greer [2021] QCA 174
PARTIES:  MARK CHRISTOPHER GREER
(appellant)
v
STUART JOSHUA GREER
(respondent)
FILE NO/S:  Appeal No 573 of 2021
SC No 3690 of 2018
DIVISION:  Court of Appeal
PROCEEDING:  General Civil Appeal – Further Order
ORIGINATING  Supreme Court at Brisbane – Unreported, 18 December 2020
COURT:  (Dalton J)
DELIVERED ON:  20 August 2021
DELIVERED AT:  Brisbane
HEARING DATE:  Heard on the papers
JUDGES:  Sofronoff P and Bond JA and Wilson J
ORDER:  The appellant should pay the respondent’s costs of the
appeal, to be assessed on the standard basis.
CATCHWORDS:  PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the parties provided further submissions on the issue of costs – where the Court dismissed an appeal from the decision of the primary judge – where the parties agree that costs should follow the event – where the respondent contends that costs should be assessed on the indemnity basis – whether the circumstances warrant the Court’s discretion in favour of an indemnity costs order
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225;
[1993] FCA 801, cited
Martinovic v Chief Executive, Queensland Transport [2005]
1 Qd R 502; [2005] QCA 55, cited
Rouse v Shepherd (No 2) (1994) 35 NSWLR 277, cited
COUNSEL:  J D Byrnes for the appellant
A J H Morris QC for the respondent
SOLICITORS:  Cooke & Hutchinson Lawyers for the appellant
Australian Law Partners for the respondent

  1. THE COURT: Amongst other questions which arose in the proceeding in the trial division was the question of whether a deceased man had testamentary capacity to make the will which he made shortly before his death. The appellant (who was the defendant in the proceeding in the trial division) was the executor named in that will.

  2. Two questions were set down for separate determination: first, whether the testator had testamentary capacity at the time of execution of the will; and second, whether the will should be admitted to probate in solemn form.

  3. The primary judge found that the testator did not have testamentary capacity at the time he executed the will and made a declaration accordingly. Her Honour reserved the questions of the costs of and incidental to the hearing to the Court which finally determined the remaining issues in the proceeding.

  4. For reasons expressed in Greer v Greer [2021] QCA 143, the Court: dismissed an appeal from the decision of the primary judge; directed the parties to file and serve written submissions on costs; and directed that it would determine on the papers any issues which arose in relation to costs.

  5. The appellant accepted that he should be required to pay the respondent’s costs of the appeal. The result was that the only issue in contest on costs was whether the Court should accede to the respondent’s submission that costs should be assessed on the indemnity basis.

  6. The respondent submitted that five considerations…

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Greer v Greer [2021] QCA 174
Case
[2021] QCA 174
Decision Date

CaseChat Overview and Summary

The case of Greer v Greer involved an appeal against a decision made in civil proceedings. The Court was required to determine the appropriate costs order, specifically whether the costs should be assessed on the standard basis or the indemnity basis. The primary judge had ruled in favour of the respondent, and the appellant sought to challenge this decision on appeal. The parties submitted further arguments on the costs issue, with the respondent arguing for an indemnity costs order. The Court found that while the appeal was dismissed, there were no grounds to conclude that the appeal was advanced in wilful disregard of known facts or law, or that it should never have been run. The Court held that the appeal was unsuccessful, but this alone did not warrant an indemnity costs order. The Court found that the respondent's submission for indemnity costs was an overreach, and no occasion arose to express a view on the merits of the case before the primary judge. The Court ordered that the appellant should pay the respondent's costs of the appeal, to be assessed on the standard basis.

The legal issue before the Court was whether the circumstances warranted the exercise of its discretion in favour of an indemnity costs order. In determining this, the Court considered the reasons for the dismissal of the appeal and whether the appeal was advanced in wilful disregard of known facts or law, or should never have been run. The Court found that the appeal was unsuccessful but that there were no grounds to conclude that it was advanced in wilful disregard of known facts or law, or that it should never have been run. The Court held that the mere failure of an appeal does not justify an indemnity costs order. The Court found that the respondent's submission for indemnity costs was an overreach, and no occasion arose to express a view on the merits of the case before the primary judge. The Court ordered that the appellant should pay the respondent's costs of the appeal, to be assessed on the standard basis.

Orders

Orders of the court

The appellant should pay the respondent’s costs of the

appeal, to be assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Similarly, if the merits of the case advanced on appeal warranted the conclusion that the case on appeal must have been advanced in wilful disregard of the known facts or clearly established law, or should never have been run, or has resulted in the undue prolongation of a case by the making of groundless contentions, that might well have supported an indemnity costs order. But no such adverse qualitative evaluation could be made of the case advanced on appeal. The reasons for judgment dismissing the appeal reveal that the case on appeal failed, but mere failure does not justify an indemnity costs order. The respondent’s submission to the contrary constitutes an overreach. No occasion arises to express a view about the merits of the case advanced before the primary judge. The order of the Court is that the appellant should pay the respondent’s costs of the appeal, to be assessed on the standard basis.

Ratio Decidendi

Legal Principle Established

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