IMO Moerth (No.2)

In the matter of IMO Moerth (No.2), the dispute involved a claim for family provision under the Family Provision Act 1969 (Qld) made by a plaintiff against the estate of a deceased person. The court was required to decide whether the plaintiff, who was ultimately unsuccessful in their claim, should be ordered to pay the costs of the estate. The case was heard in the Queensland Supreme Court.

The primary legal issue before the court was whether the unsuccessful plaintiff should be ordered to contribute to the costs of the estate. This required consideration of the discretion granted to the court under the Family Provision Act 1969 (Qld) to order costs as it sees fit. The court had to balance the interests of the plaintiff, who had brought forward a claim in good faith, against the interests of the estate and its beneficiaries.

The court held that the plaintiff, having brought the claim in good faith, should not be ordered to pay the costs of the proceeding. However, the court did order that the plaintiff pay their own costs on a party/party basis. The reasoning was that while the plaintiff's claim was not entirely without merit, it ultimately failed, and thus, the plaintiff should bear the burden of their own legal costs. The court also ordered that the defendants’ costs of the proceeding were to be paid out of the estate on a trustee basis.

The final orders included the payment of the defendants’ costs out of the estate on a trustee basis, and the plaintiff was to reimburse the estate for their own costs on a party/party basis. If the plaintiff failed to make the reimbursement, the court ordered that the costs expenses of the defendants would be retained out of the estate. Additionally, any costs incurred by a specific defendant, Paul Moerth, that were separate from those mentioned, were also to be paid out of the estate on a trustee basis.