In the will of
[2022] QSC 212
•6 October 2022
SUPREME COURT OF QUEENSLAND
CITATION:
In the will of Fay Daphne Butterworth [2022] QSC 212
PARTIES:
IN THE WILL OF FAY DAPHNE BUTTERWORTH
JAMES HENRY PARKER
(applicant)
PAULINE ANNE HINTON
(caveator)
FILE NO/S:
BS 14790 of 2021
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court
DELIVERED ON:
6 October 2022
DELIVERED AT:
Brisbane
HEARING DATE:
28 September 2022
JUDGE:
Freeburn J
ORDER:
1. The order made on 16 September 2022 include the words “on an indemnity basis” at the end of paragraph 10.
2. On the application made on 23 September 2022, there be no order as to costs.
CATCHWORDS:
CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS OUT OF THE ESTATE – BASIS ON WHICH COSTS ORDERED – SUCCESSION –_ MATTERS RELATING TO BENEFICIARIES – where and application was heard and costs awarded – where an order was made by the applications judge in terms of an amended draft and a clean version was to be subsequently communicated to his Honour’s associate – where an amended draft order was communicated and the order made in chambers – where the amended order did not reflect the orders made in court – where a party brought an application to alter the amended order made in chambers to reflect the order made in court – whether the costs order made in chambers may be amended – whether the costs of this application ought to be granted.
COUNSEL:
Ms Philippou (the applicant, Mr Parker)
Mr Hackett (the caveator, Ms Hinton)
SOLICITORS:
Bennett Carroll Solicitors for the applicant
McLaughlin & Associates Lawyers Pty Ltd for the caveator
On 16 September 2022, this proceeding was heard in the Applications jurisdiction. Orders were made. On 28 September 2022, Ms Hinton, the caveator, brought an application to alter the costs order that was made on 16 September 2022 and applies for the costs of this application.
Fay Butterworth died on 27 September 2021. Prior to her death, she executed a Will in 2002 and another in 2015 (which revoked the 2002 Will). With one exception, the two Wills are the same. The exception was that the 2002 Will appointed Ms Pauline Hinton (her daughter) and Mr James Parker (her son-in-law) as executors and trustees. The 2015 Will appointed Mr Parker solely as the executor and trustee.
An issue was raised as to the testamentary capacity of Ms Butterworth at the time of her 2015 Will. However, as the two Wills were materially identical (except for the identity of the executor), a reasonable observer might conclude that there was little or no scope for dispute. That view underestimates the capacity of these parties and/or their lawyers to find conflict.
On 9 December 2021, Ms Hinton, a beneficiary, filed a caveat over the deceased’s estate. She propounded the validity of the 2002 Will. Four days later, Mr Parker applied for probate of the 2015 Will. Thereafter, Ms Hinton and Mr Parker disputed the deceased’s capacity at the time of the 2015 Will.
Ultimately, the matter was listed before Boddice J on 17 August 2022. His Honour adjourned the hearing to 31 August 2022 to allow the parties to try to reach a resolution. Mr Parker’s solicitors repeated an earlier offer that an administrator be appointed to administer the estate. Mr Scott Whitla and Ms Katie Cox were suggested as possible administrators. That proposal was met with a rather tendentious response.
There was a further adjournment on 31 August 2022.
Ms Hinton’s solicitors were not prepared to accept Mr Whitla or Ms Cox as administrators, for different reasons. On 31 August 2022, Ms Hinton’s solicitors proposed that the independent administrator be Ms Barbara Houlihan. That same day Mr Parker’s solicitors agreed. They accepted also that the 2002 Will be proved and agreed to the proposed draft order.
On 2 September 2022, Ms Hinton’s solicitors responded, saying that there was no agreement about costs and observed that the exercise of the court’s discretion as to costs “will not be as perfunctory as you seem to think it will be”. They said they will email separately about costs and the proposed draft order.
On 6 September 2002, Mr Parker’s solicitors replied saying that, in accordance with the usual order, the costs of both parties should be paid from the estate on an indemnity basis – as agreed or assessed. They said that they were content for the court to determine costs on 16 September 2022 if that could not be agreed by consent.
On 12 September 2022, Ms Hinton’s solicitors sent a lengthy letter to Mr Parker’s solicitors. That letter complained about the use of the wrong procedure and attached alternative draft orders. On the issue of costs, Ms Hinton’s solicitors contended that costs ought to follow the event. They contended that Mr Parker’s abandonment of the 2015 Will meant that their client had been successful.
It is worth observing that this contention was a bold one, given that the substantive content of the Wills was identical, and Mr Parker had been willing to consent to the appointment of an independent executor. For my part, I would be reluctant to characterise a sensible concession or compromise as a ‘loss’ or as an ‘event’ which attracts the general principle in rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) that ‘costs ought to follow the event’. When rule 681 speaks of the ‘event’ it is speaking of the result of a proceeding, and usually a contested proceeding, and not of the result of a negotiated solution. Parties ought not suffer costs consequences for being willing to compromise. Adverse consequences for reasonable concessions would discourage reasonable compromises.
In any event, Ms Hinton’s solicitors (on an open basis) made a counteroffer to compromise costs by proposing to, firstly, neither consent nor oppose the proposed costs order, but on the condition that all five beneficiaries agreed to the proposed costs order. Secondly, if the court was not persuaded to make the costs order proposed by Mr Parker’s lawyers, then Ms Hinton’s lawyers proposed that the costs aspect be adjourned so that material could be filed and the costs could be argued, possibly by written submissions. Just why Ms Hinton’s solicitors made that complicated two-level offer is not clear. As events turned out, this counteroffer served to increase the costs rather than minimise them.
On 13 September 2022, Mr Parker’s solicitors responded enclosing a fresh proposed order with tracked changes. Mr Parker’s solicitors contended that the costs issue should be heard and determined at the hearing on 16 September 2022. That letter also enclosed an affidavit of Mr Parker which addressed contact with the beneficiaries.
On the same day, Ms Hinton’s solicitors replied:
“I have read the attached material and I am seeking instructions.
In the meantime, please provide me with the following as soon as possible:
1. I have previously asked whether your counsel is still Ms Stephanie Philippou. Please answer that question. If not, please inform us of the name of your counsel.
2. Please inform us of the name of the person who drafted the draft order attached to your email of 12 September 2022.
3. Please inform us of any authority your counsel relies on in respect of your assertion, ‘We are advised by counsel that Order 1 is required and is a standard order’.”
On the same day Mr Parkers’ solicitors replied:
“1. Yes, Ms Stephanie Philippou is still instructed as counsel;
2. Ms Stephanie Philippou drafted the order attached on 12 September 2022, as shown by her initials in the tracked changes; and
3. Ms Philippou has advised: ‘Various decisions of the Supreme Court of Queensland. We will not waste the assets of the estate in circumstances where a duly qualified solicitor acts and can conduct his own investigations. It is not a matter of legal principle but a matter of practice’.”
That afternoon Ms Hinton’s solicitors emailed as follows:
“We refer to paragraph 3 of your email below. We note Ms Philippou refuses to inform us of the authority on which she relies to be so sure that order 1 in her draft order is required ‘as a matter of practice’, and does so in a very discourteous way.”
‘Discourtesy’ is one descriptor. Another may be ‘frustrated’.
On 14 September 2022, Ms Hinton’s solicitors gave notice that Mr Parker was required for cross-examination on his affidavit. This notice was never pursued. The reasons for giving the notice were never explained.
Mr Parker’s solicitors replied asking why Mr Parker was required for cross-examination given that all issues in dispute had been agreed.
The same day Ms Hinton’s solicitors replied:
“We refer to your email below.
Firstly, you have served Mr Parker’s affidavit.
Secondly, we are entitled to serve the r 439(2) notice.
Thirdly, you have rejected our suggestion that if the court will not order that costs be paid out of the estate, then argument of our reserved position that Mr Parker should pay costs be adjourned with directions as to further conduct.
Fourthly, you will, within minutes, be served with a copy our client’s affidavit sworn today. The reason our client wishes your client to attend the court for cross examination will be apparent from the contents of that affidavit.”
Then Ms Hinton’s solicitors sent a further email:
“We attach true copy of our client’s 6 page affidavit sworn today together with exhibit PAH1 and exhibit marking totalling 2 pages.
We will seek leave to file and read that affidavit at the hearing on 16 September 2022.
It is noted that your rejection of our suggestion that our client’s reserved position that Mr Parker should pay costs, should it arise, be adjourned with directions as to further conduct is causing our client to incur costs unnecessarily.”
At the hearing on 16 September 2022, counsel for Mr Parker and the solicitors for Ms Hinton both handed up substantive written submissions. However, the argument was confined to the form of the order. A draft order supplied by the parties was amended by me during the course of argument and at the conclusion of the hearing was shown to both the solicitor for Ms Hinton and Mr Parker’s counsel. The latter took a photograph of the order with my handwritten alterations made during the course of the hearing. I made an order in terms of that draft.
Ms Hinton’s solicitors contend that, during the hearing I was mistakenly given the wrong draft order. The draft the parties had discussed prior to the hearing provided for each of Mr Parker’s costs and Ms Hinton’s costs to be paid from the estate on an indemnity basis. However, there was no agreement about that form of order. Ms Hinton’s solicitors expressly adopted a two-level response which involved Ms Hinton not opposing an order that both parties’ costs be paid from the estate, and then if the court failed to make such an order, a subsequent argument about the costs.
Nevertheless, there appeared to be no opposition to an order that both parties’ costs be paid from the estate, and there was no difficulty about that raised by either party or the court during the hearing.
Again, at this point any reasonable observer would think there was little room for further dispute. Not so.
On the afternoon of 16 September 2002, Ms Hinton’s solicitors became concerned that paragraph 10 of the draft order was incorrect and that the words “on an indemnity basis” should appear at the end of that paragraph.
Mistakes like this are routinely corrected before the draft order is sealed.
At 4.26pm that day, Ms Hinton’s solicitors sent an email to Mr Parkers’ solicitors:
“Your counsel took a photo of His Honour’s draft order at the bar table.
Please email me a copy of that. Among other things, I want to make sure that paragraph 10 reflects the parties (sic) agreement that our client’s costs are to be paid on the indemnity basis.”
The last part of that email asserts an agreement that Ms Hinton’s costs were to be paid on an indemnity basis. Such an agreement cannot be discerned from the correspondence. By the time of the hearing on 16 September 2022, the position was that Ms Hinton’s solicitors had declined to agree on costs. Thus, this email seems to have started on a mistaken footing.
At 4.54pm, Mr Parker’s solicitors emailed my associate a corrected Word version of the order made earlier that day. Presumably that was done because the parties undertook to provide the corrected version to my associate. The corrected version did not include the words “on an indemnity basis” at the end of paragraph 10. That was because that version was faithful to the hearing that day. But, as it turns out, that version was not faithful to what had been agreed.
Ms Hinton’s solicitors took umbrage at that step:
“Firstly, you should not have sent that order to the Associate without our consent.
Secondly, the agreement was that your client’s costs and our client’s costs be paid on the indemnity basis.
Paragraph 10 of your attached order does not provide that our client’s costs be on the indemnity basis. Please refer to page 78 of exhibit MABS 17 that was referred to by His Honour.
We will send a corrected order shortly.”
Then, at 5.12pm, they sent this email:
“Please refer to my email minutes ago.
I have attached a draft order that reflects what was agreed.
That is subject to seeing the photo of His Honour’s draft order requested earlier.
In the meantime, please email the Associate withdrawing your draft order while this matter is settled between us.
We hope you are not going to put us to the expense of going back before His Honour under the slip rule.”
At 5.23pm, Ms Hinton’s solicitors sought permission to request a correction to the order. They requested a response that afternoon. Mr Parker’s solicitors subsequently characterise these emails as attempts to bully their office into adhering to unreasonable time frames. Combative is a better description for the stances taken by both parties.
At 5.39pm, Mr Parker’s solicitors emailed saying that “the order was amended to reflect His Honour’s exact wording in the attached photo”. Regrettably, Mr Parker’s solicitors do not go on to consider the substance of the issue – that is whether the order reflected the order that had been agreed or the order that was appropriate.
At 5.45pm, Ms Hinton’s solicitors replied:
“Our client’s costs were agreed to be paid on the indemnity basis. I would be surprised if His Honour would not correct his draft to reflect that upon being requested by the parties by email to do so.
In the meantime, please provide me with your consent to email the Associate as I requested earlier.
If this matter cannot be sensibly dealt with by you, I will be making the appropriate application to the court.”
On Sunday 18 September 2022, at 5.25pm, Ms Hinton’s solicitors sent a long email (which they describe as a short email with a longer email to follow) giving a detailed chronology in table form and expressing a number of concerns.
At 5.43pm, on the same day, Ms Hinton’s solicitors sent a longer email that incorporated the table chronology of recent emails and a chronology of what had happened on 16 September 2022. That email includes an account of what had happened outside court before the hearing on 16 September 2022. Ms Hinton’s solicitors explained that Mr Parker’s counsel, Ms Philippou, had presented a new draft order in different terms to what had previously been discussed by the parties. Importantly for present purposes, Ms Hinton’s solicitor, Mr Smith said, in this email:
(a)He agreed with the order proposed by Ms Philippou but subject to two qualifications, namely: a query about whether paragraph 1 was necessary and his reservation to argue costs later;
(b)His client’s position on costs was “unchanged” and that if the court was not willing to exercise the discretion as to costs, Ms Hinton reserved her right to argue for a different costs order;
(c)Ms Philippou took instructions and was not seeking “the costs concerning (Ms Hinton) in her new draft order of that morning, although her client’s costs position was reserved if our reserved costs position had to be argued”.
It is difficult to discern any binding agreement from that exchange. That is illustrated by this part of the email from Ms Hinton’s solicitors:
“The agreement between the parties about costs orders, that I was neither consenting to nor opposing but which would be abided by if His Honour would make them in exercise of his discretion, was, and is, essentially, that each party’s costs be paid from the deceased’s estate on the indemnity basis.” [underlining in the original]
On any view the furthest Ms Hinton’s solicitors were prepared to agree was that Mr Parker’s solicitors could seek the costs orders they proposed, and Ms Hinton’s solicitors would neither consent nor oppose those costs orders, but if the court declined to exercise the costs discretion in that way Ms Hinton’s solicitors would argue for a more favourable costs order. On the other hand, it appears that the parties were discussing drafts which state:
3.“The applicant James Henry Parker’s costs of and incidental to the Originating Application, the Caveat and Notice supporting caveat, and the application filed 1 August 2022 including reserved costs be paid from the deceased’s estate on the indemnity basis to be agreed or failing agreement to be assessed.
4.The caveator Pauline Anne Hilton’s costs of and incidental to the Originating Application, the Caveat and Notice supporting caveat, and the application filed 1 August 2022 including reserved costs be paid from the deceased’s estate on the indemnity basis to be agreed or failing agreement to be assessed.”[1]
[1]This is an exhibit to Mr Smith’s affidavit of 15 September 2022, see page 73 orders 3 and 4, and page 78 orders 4 and 5.
The email continued with Ms Hinton’s solicitors complaining that Mr Parker’s solicitors were trying to take advantage of Mr Smith’s mistake.
By a further email at 5.55pm, Ms Hinton’s solicitors referred to his two earlier emails that afternoon and requested the consent of Mr Parker’s solicitors to an email to my associate. The proposed email referred to the redrafted order as not reflecting “the terms about costs agreed by the parties in the event His Honour would make orders in the exercise of his discretion”.
On Monday 19 September 2022, Mr Parker’s solicitors replied to the nine emails sent by Ms Hinton’s solicitors on Friday 16 September 2022 and Sunday 18 September 2022. They said that the proceeding went to a contested hearing on 16 September 2022, the orders forwarded to my associate were in accordance with the handwritten changes I had made during the hearing, and Ms Hinton was welcome to make an application if there was disagreement, in which case costs would be sought.
By an email at 5.10pm, on 19 September 2022, Ms Hinton’s solicitors sought Mr Parker’s consent to email my associate asking for a re-listing of the proceeding.
On Wednesday 21 September 2022, Mr Parker’s solicitors backtracked a little. They said:
“The issue ought properly to have been raised prior to the matter being adjourned; however we have reviewed how His Honour reached the Orders made and it seems that he may have intended to make orders in terms of the orders in paragraphs 3 and 4 in draft orders sent by us on 13 September 2022, referred to in your affidavit, and verbally referred to by you during your submissions.
It appears His Honour’s handwritten alterations do not match the verbal determination that he made.
On that basis, we consent to you writing to the Associate to ask the question, as it seems it may have merit.”
Again, one would think that with a modicum of goodwill there is, at this point, a good prospect of some resolution. Unfortunately, not. Of course, at this point the order had not yet been sealed and so all that was needed was for both parties to make a request to my associate to add the words “on an indemnity basis” to paragraph 10.
On the same day, Ms Hinton’s solicitors replied saying: “We respectfully suggest that, rather than questioning His Honour, the matter could be dealt with by an email to the Associate in terms below.” What followed was a lengthy proposed email which proposed a corrected order. They followed up the following day.
On Friday 23 September 2022, at 9.08am, Mr Parker’s solicitors responded saying:
“We are not sufficiently satisfied with the terms of your draft email to the Associate to consent to it, because it does not accord with the indication of our view imparted to you in our email of Wednesday, 21 September 2022.
We did not indicate, nor do we accede to the view that His Honour has made an error with the order placed with the file.
We can see three ways forward:-
(a)You relist the matter for further argument (we think unnecessary);
(b)You forward the version of your email sent to our office on 21 September 2022 and resent on 22 September 2022. We will forward an email indicating you have discharged your ethical obligations by involving us in the process transparently, and state our assessment that we lodged the orders as His Honour marked but are content for you to raise the issue; or
(c)You can amend your proposed email to reflect our view along side yours.
Our preference would be for option b.”
Immediately, Ms Hinton’s solicitors responded enclosing an amended email to my associate with highlighted alterations. Mr Parker’s solicitors responded saying:
“Thank you for including our latest email in your draft email to the Associate.
We don’t see it as consistent with the rest of your email; however, we are content for you to submit your email to the Associate regardless.
We will then write to the Associate outlining that this is your request, and that the Applicant does not concede nor agree to your request.”
At 2.34pm, that Friday, Ms Hinton’s solicitors filed and served an application for a correction to the order and for the costs of the application. Later that day, a request was made of my associate that the matter be listed before me urgently. My associate offered for the matter to be heard on the following Monday 26 September 2022, but, owing to counsel availability, the matter was listed for hearing on Wednesday 28 September 2022.
In the meantime, on Monday 26 September 2022, Mr Parker’s solicitors explained their position to their opponents:
“Our email of Wednesday, 21 September 2022 pointed out that this was your error, not ours.
We pointed out to you in our emails of 21 September 2022 and 23 September 2022 that we felt that it was possible that His Honour may have intended something else.
You twice attempted to misrepresent our statements in your draft emails to His Honour’s Associate as an agreement that His Honour had in fact made a mistake, which was clearly false.
We have at all times indicated:-
(a) that we lodged the orders in ordinary course of court business as signed by His Honour;
(b) that we were content for you to seek clarification but were not joining you in your assertion that the Orders were mistaken.”
That prompted a lengthy email from Ms Hinton’s solicitors on 26 September 2022 dealing with the audio of the hearing on 16 September 2022. According to Ms Hinton’s solicitors, the audio demonstrates that the costs orders were to be as per paragraphs 3 and 4 of page 73 of exhibit MABS 17[2] and that was agreed by Mr Parker’s counsel. Ms Hinton’s solicitors refuted the assertion that this was their error. They said: “This was everyone’s error”. They then asserted that Mr Parker’s solicitors had sought to take advantage of the error.
[2]This is an exhibit to Mr Smith’s affidavit of 27 September 2022, see page 13.
On the same day Mr Parker’s solicitors responded saying:
“Based on the new evidence provided, it seems clear that the Order that His Honour provided to us, which we filed, does not reflect the words he spoke before making the Order. In those circumstances, if His Honour is prepared to make the Order, for our part we would consent.
Solicitors for the parties cannot unilaterally consent to or otherwise undo an Order that His Honour appeared to have made. If your office had written to the Registry and raised the issue (as we suggested to you on 23 September 2022), your application might not have been necessary.
It is still for His Honour to actually make the order, but in light of the evidence provided now, we support your contention.
In light of the new evidence that you have provided, so far as costs are concerned, the new evidence appears to indicate that perhaps each parties costs should be paid on an indemnity basis from the estate. We propose that as a resolution.
You appear to be attempting to make some kind of thinly veiled professional conduct allegation. If that is in fact what you are doing, we look forward to a clear statement that the misconduct is alleged and particulars. This matter will be dealt with separately to the proceedings.
With regard to your allegations of misconduct by Counsel, we wish to point out that you psychically (sic) held the orders which His Honour had made hand written amendments to, but failed to “notice” that the Orders were not as you contend them to be. Ms Philippou took a photograph of the Orders so as to not waste the Court’s time.”
When the matter was heard on 28 September 2022, Mr Hackett of Counsel appeared for Ms Hinton. He sought the costs of the application to correct the order. He contended that the application was unnecessary, that Mr Parker should pay the costs of the application, and the estate should not pay those costs. Ms Philippou appeared for Mr Parker and contended to the contrary.
The general principle has been that, once a judgment or order has been entered, the court, which made the order or pronounced the judgment, has no power to review the decision or vary or set aside the judgment or order.[3] However, until the judgment or order is entered, there is power to vary or amend. That is the case here. A form of the order made on 16 September 2022 is on the court file, but that order has not been sealed. It follows that the court should correct the order to add the words “on an indemnity basis” at the end of paragraph 10.
[3]Queensland Civil Practice, commentary UCPR.388.10
Even if that were not the case, I would be prepared to make the same correction under Uniform Civil Procedure Rules 1999, rule 388 or rule 667.
The next question is: what should be done about the costs of this application? Ordinarily, there would be some force in Mr Hackett’s rather accurate submission that the application was unnecessary and that the parties ought to have agreed to the correction of the order without the necessity for an application. There are, however, some special features in this case.
In this situation, legal costs are not necessarily claimable against the estate, especially if resulting from contentious actions.[4] All circumstances are taken into account rather than simply acting upon the presumption that costs ought to follow the event. Factors considered by courts in determining costs are whether the testator, by reason of conduct, has caused the litigation, or where poor drafting has necessitated action, or where an action to oppose a Will is justified.[5] On the other hand, costs have been awarded against parties, rather than from estates, where the action is adversarial rather than a joint application or where one of four executors refuses to join with others in application for probate thereby necessitating the appointment of an administrator.[6] A strong factor is whether the action taken by one or more of the parties is unreasonable.
[4]Dal Pont GE, Law of Costs (2003) Ch 10.
[5]See, for example the discussion of this topic by John K de Groot in Laws of Australia at [36.3.1860].
[6]Ibid.
Here, the order already made entitles both parties to their substantive costs from the estate. There is some justification for that as they each sought to propound a different Will which specified different executors. They agreed to compromise that dispute by appointing an experienced and independent administrator, Ms Houlihan, without a full hearing on the merits. Although it was not without some rancour, the resolution of that dispute saved significant costs.
Since then, though, as can be seen from the rather sorry tale explained above, the parties have indulged in a combative correspondence featuring unsubstantiated allegations of poor professional conduct, pedantry, clinging to a non-existent agreement on costs, and an unwillingness to adopt a reasonable, practical stance. Of course, those features of the skirmishes may be because of the parties themselves are at loggerheads. Or it may be because the solicitors have an antipathy to each other. Or it may be both.
In my view, however, the stances taken on both sides can hardly be said to be reasonable or consistent with the obligation to proceed in an expeditious way.[7] A reasonable approach by both parties and their solicitors would have resulted in a corrected order without the need for aggressive correspondence or a contested application. The stances taken by both sides have contributed to significantly increased costs. It would be unfair for the beneficiaries of the estate to be required to meet those costs, whether on a standard or an indemnity basis.
[7]Rule 5(3) of the Uniform Civil Procedure Rules 1999 (Qld).
For those reasons, I propose to make no order as to the costs of the application. The disputants should meet their own costs of that application.
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