Hartley v Hartley [No 2] - [2023] QCA 80

SUPREME COURT OF QUEENSLAND

CITATION:

Hartley v Hartley [No 2] [2023] QCA 80

PARTIES:

SHANE MICHAEL HARTLEY AS EXECUTOR OF THE WILL OF SHIRLEY LILLIAN HARTLEY (DECEASED)
(applicant)
v
CRAIG ANDREW HARTLEY
(respondent)

FILE NO/S:

Appeal No 776 of 2022
DC No 27 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

District Court at Cairns – [2021] QDC 323 (Morzone QC DCJ)

DELIVERED ON:

26 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Morrison and Bond JJA and Boddice J

ORDERS:

1. The applicant must pay the respondent’s costs of the applicant’s application filed on 8 February 2022, to be assessed on the standard basis.

2. The applicant shall not be entitled to any reimbursement or indemnity from the assets of the estate in relation to his own costs of the application or the costs ordered to be paid to the respondent.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – COSTS OF PROCEEDING IN WRONG COURT – OTHER CASES AND MATTERS – where the applicant sought to appeal the primary judge’s decision before any final order had been made – where directions were made permitting a final order to be obtained and then a decision made as to whether the appeal would still be pursued – where the applicant decided not to press any appeal after a final order was made – whether costs should be awarded in favour of the applicant or respondent

Appeal Costs Fund Act 1973 (Qld), s 15(1)
Succession Act 1981 (Qld), s 41

Hartley v Hartley [2022] QDC 217, cited
Hartley v Hartley [2022] QCA 96, cited
Spencer v Burton[2015] QCA 145, distinguished

COUNSEL:

D J Topp for the applicant
T J Naylor for the respondent

SOLICITORS:

Smithfield Law for the applicant
Maurice Blackburn Lawyers for the respondent

THE COURT: On 3 March 2017, the respondent before this Court (the respondent) filed an originating application in the District Court which sought orders pursuant to s 41 of the Succession Act 1981 (Qld) that adequate provision be made out of his deceased mother’s estate for his proper maintenance and support.
On 14 December 2021, the primary judge published written reasons for judgment explaining his reasons for concluding that he would make an order that further provision be made. Some complexity attended the formulation of the terms of the order which the primary judge contemplated. Accordingly, the only order made by the primary judge at the time he published his reasons was:
“I will hear further submissions from the parties about the form of order consistent with this decision, and any application as to costs.”
The applicant before this Court (the applicant) posted to the Court of Appeal a notice of appeal from the primary judge’s decision and the notice was received on 19 January 2022. The notice of appeal had identified three alleged errors said to have been made in the primary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Hartley v Hartley [No 2] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] QCA 80
Decision Date: 26 April 2023

CaseChat Overview and Summary

The case of Hartley v Hartley [No 2] involved a dispute between the parties regarding costs incurred in civil proceedings. The primary judge had ruled on the matter, but the applicant sought to appeal this decision before a final order had been made. Directions were subsequently given allowing the applicant to obtain a final order and then decide whether to proceed with the appeal. Ultimately, the applicant decided not to pursue the appeal after the final order was made. The court was tasked with determining whether the costs incurred by the applicant should be awarded to the applicant or the respondent.

The legal issues before the court were centred on the circumstances under which costs should be awarded in the context of an appeal that was initiated prematurely but subsequently abandoned. Specifically, the court had to consider whether the applicant, having decided not to pursue the appeal, should be awarded costs or whether the respondent should be awarded the costs of the application filed by the applicant.

In resolving these issues, the court found that the applicant’s decision to abandon the appeal after a final order had been made was a significant factor. The court concluded that the applicant's decision to pursue the appeal was not well-founded and that the respondent should, therefore, be awarded the costs of the application filed by the applicant. Furthermore, the court ruled that the applicant would not be entitled to any reimbursement or indemnity from the estate in relation to their own costs of the application or the costs ordered to be paid to the respondent.

The court ordered that the applicant must pay the respondent's costs of the application filed on 8 February 2022, to be assessed on the standard basis. Additionally, the applicant was barred from any reimbursement or indemnity from the estate in relation to their own costs of the application or the costs ordered to be paid to the respondent. This decision underscored the importance of pursuing appeals judiciously and the potential financial consequences of doing so without proper justification.

Orders

Orders of the court

1. The applicant must pay the respondent’s costs of the applicant’s application filed on 8 February 2022, to be assessed on the standard basis.

2. The applicant shall not be entitled to any reimbursement or indemnity from the assets of the estate in relation to his own costs of the application or the costs ordered to be paid to the respondent.

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.

CITATION:	Hartley v Hartley [No 2] [2023] QCA 80
PARTIES:	SHANE MICHAEL HARTLEY AS EXECUTOR OF THE WILL OF SHIRLEY LILLIAN HARTLEY (DECEASED) (applicant) v CRAIG ANDREW HARTLEY (respondent)
FILE NO/S:	Appeal No 776 of 2022 DC No 27 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders
ORIGINATING COURT:	District Court at Cairns – [2021] QDC 323 (Morzone QC DCJ)
DELIVERED ON:	26 April 2023
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Morrison and Bond JJA and Boddice J
ORDERS:	1. The applicant must pay the respondent’s costs of the applicant’s application filed on 8 February 2022, to be assessed on the standard basis. 2. The applicant shall not be entitled to any reimbursement or indemnity from the assets of the estate in relation to his own costs of the application or the costs ordered to be paid to the respondent.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – COSTS OF PROCEEDING IN WRONG COURT – OTHER CASES AND MATTERS – where the applicant sought to appeal the primary judge’s decision before any final order had been made – where directions were made permitting a final order to be obtained and then a decision made as to whether the appeal would still be pursued – where the applicant decided not to press any appeal after a final order was made – whether costs should be awarded in favour of the applicant or respondent Appeal Costs Fund Act 1973 (Qld), s 15(1) Succession Act 1981 (Qld), s 41 Hartley v Hartley [2022] QDC 217, cited Hartley v Hartley [2022] QCA 96, cited Spencer v Burton[2015] QCA 145, distinguished
COUNSEL:	D J Topp for the applicant T J Naylor for the respondent
SOLICITORS:	Smithfield Law for the applicant Maurice Blackburn Lawyers for the respondent