Herrod v Johnston - [2013] QCA 184

SUPREME COURT OF QUEENSLAND

CITATION:

Herrod & Ors v Johnston & Anor [2013] QCA 184

PARTIES:

HAREL JOSEPH HERROD
(first appellant)
ROBERT MATTHEW HERROD
(second appellant)
RACHAEL REBECCA HOLLINGSWORTH
(third appellant)
v
HARELLA CAROLINE JOHNSTON
(first respondent)
LEAH DELILAH FELSMAN
(second respondent)

FILE NO/S:

Appeal No 4369 of 2012
SC No 501 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

12 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Muir and Gotterson JJA and Applegarth J
Judgment of the Court

ORDER:

The respondents’ application for variation of the orders of 18 December 2012 and the appellants’ application for a costs order are refused.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – INHERENT POWER TO AMEND TO GIVE EFFECT TO MEANING AND INTENTION OF COURT – where, on 18 December 2012, the Court of Appeal allowed the appellants’ appeal – where each respondent was awarded the aggregate of their one ninth share of the value of the partnership and their one third share of the residuary estate plus interest – where the Court reduced the value of the partnership interest of the deceased to take into account the partnership debts – where the Court did not increase each respondent’s share of the residue by one third of the partnership debts – where the respondents submit that the Court’s order did not reflect the Court’s intention at the time the order was made or resulted from an accidental slip or omission – where the respondents contend that the partnership debts should have fallen into the residue of the estate – where the appellants submit that the respondents’ claim is inconsistent with the respondents’ position on appeal – where the appellants submit that the partnership debts were to be paid to the widow under the will – where there was no argument at first instance or on appeal that the quantum of the respondents’ interests in the residuary estate was to be measured by reference to the partnership debts – whether the order should be amended pursuant to r 667(1), r 667(2)(d) or r 388 of the UCPR

APPEAL AND NEW TRIAL – QUEENSLAND – POWERS OF COURT – COSTS – where the Court allowed the appellants’ appeal and made no order as to costs – where the appellants submit that the respondents should bear the costs of the appeal as the appellants had an appreciable measure of success and the respondents rejected the appellants’ settlement offer – where the appellants succeeded on only two of the eight grounds raised on appeal – where the matters on which the appellants succeeded on appeal occupied only a small part of their written submissions and the Court’s reasons – whether costs should be awarded

Uniform Civil Procedure Rules 1999 (Qld), r 388, r 667, r 681

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, considered
Oshlack v…

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.

Continue reading Herrod v Johnston

Details

AGLC: Herrod & Ors v Johnston & Anor [2013] QCA 184
Case: [2013] QCA 184
Decision Date: 12 July 2013

CaseChat Overview and Summary

In the case of Herrod v Johnston, the respondents sought to amend the Court of Appeal’s judgment of 18 December 2012. The original judgment had awarded each respondent their one ninth share of the value of the partnership and their one third share of the residuary estate, plus interest. The Court had reduced the value of the deceased’s partnership interest to account for partnership debts but did not increase each respondent’s share of the residue by one third of the partnership debts. The respondents argued that the Court’s order did not reflect its intention or resulted from an accidental slip or omission. They contended that the partnership debts should have fallen into the residue of the estate. The appellants opposed the application, asserting that the respondents' claim was inconsistent with their position on appeal and that the partnership debts were to be paid to the widow under the will. The central legal issues involved whether the Court of Appeal’s order should be amended to reflect its true intention and whether the respondents’ application for variation should be granted.

The Court considered the inherent power to amend judgments to give effect to the court's meaning and intention. The Court observed that the respondents’ argument was essentially that the Court of Appeal had made an error in its calculations. However, the Court found that the respondents had not provided sufficient grounds to justify varying the order. The Court noted that the respondents had not argued at first instance or on appeal that the quantum of their interests in the residuary estate should be measured by reference to the partnership debts. Consequently, the Court held that the respondents had not demonstrated that the order did not reflect the Court of Appeal’s intention or resulted from an accidental slip or omission. The Court also rejected the respondents' argument that the partnership debts should have fallen into the residue of the estate, as it was not raised in the original appeal. Furthermore, the Court dismissed the appellants’ application for costs, finding that the appellants had not achieved an appreciable measure of success on appeal and that the respondents had not rejected the appellants’ settlement offer.

The Court ultimately refused the respondents' application for variation of the orders of 18 December 2012 and the appellants' application for a costs order. This decision underscored the Court’s view that the original judgment accurately reflected its intention and that the respondents had not demonstrated any error or omission warranting an amendment. The refusal of the costs application further highlighted the Court’s assessment that the appellants had not achieved a significant level of success on appeal.

Orders

Orders of the court

The respondents’ application for variation of the orders of 18 December 2012 and the appellants’ application for a costs order are refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Herrod & Ors v Johnston & Anor [2013] QCA 184
PARTIES:	HAREL JOSEPH HERROD (first appellant) ROBERT MATTHEW HERROD (second appellant) RACHAEL REBECCA HOLLINGSWORTH (third appellant) v HARELLA CAROLINE JOHNSTON (first respondent) LEAH DELILAH FELSMAN (second respondent)
FILE NO/S:	Appeal No 4369 of 2012 SC No 501 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Order
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	12 July 2013
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Muir and Gotterson JJA and Applegarth J Judgment of the Court
ORDER:	The respondents’ application for variation of the orders of 18 December 2012 and the appellants’ application for a costs order are refused.
CATCHWORDS:	PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – INHERENT POWER TO AMEND TO GIVE EFFECT TO MEANING AND INTENTION OF COURT – where, on 18 December 2012, the Court of Appeal allowed the appellants’ appeal – where each respondent was awarded the aggregate of their one ninth share of the value of the partnership and their one third share of the residuary estate plus interest – where the Court reduced the value of the partnership interest of the deceased to take into account the partnership debts – where the Court did not increase each respondent’s share of the residue by one third of the partnership debts – where the respondents submit that the Court’s order did not reflect the Court’s intention at the time the order was made or resulted from an accidental slip or omission – where the respondents contend that the partnership debts should have fallen into the residue of the estate – where the appellants submit that the respondents’ claim is inconsistent with the respondents’ position on appeal – where the appellants submit that the partnership debts were to be paid to the widow under the will – where there was no argument at first instance or on appeal that the quantum of the respondents’ interests in the residuary estate was to be measured by reference to the partnership debts – whether the order should be amended pursuant to r 667(1), r 667(2)(d) or r 388 of the UCPR APPEAL AND NEW TRIAL – QUEENSLAND – POWERS OF COURT – COSTS – where the Court allowed the appellants’ appeal and made no order as to costs – where the appellants submit that the respondents should bear the costs of the appeal as the appellants had an appreciable measure of success and the respondents rejected the appellants’ settlement offer – where the appellants succeeded on only two of the eight grounds raised on appeal – where the matters on which the appellants succeeded on appeal occupied only a small part of their written submissions and the Court’s reasons – whether costs should be awarded Uniform Civil Procedure Rules 1999 (Qld), r 388, r 667, r 681 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, considered Oshlack v…