In The Will of (No 2) - [2012] QSC 369

SUPREME COURT OF QUEENSLAND

CITATION:

In The Will of Bruce George Gillespie Deceased (No 2) [2012] QSC 369

PARTIES:

GLORIA DAWN GILLESPIE

(Applicant)

AND

GEOFFREY BRUCE GILLESPIE

(First Respondent)

And

WILLIAM BRUCE GILLESPIE

(Second Respondent)

And

MICHAEL PELDAN AND MORGAN LANE as trustees for THE ESTATE OF ANNETTE MIRIAM MAREE GREEN (FORMERLY ROGERS) (A BANKRUPT)

(Third Respondents)

FILE NO/S:

S222/2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

23 November 2012

DELIVERED AT:

Rockhampton

HEARING DATE:

On the Papers

JUDGE:

McMeekin J

ORDER:

1. The first and second respondents pay the applicant’s costs of and incidental to the application on the indemnity basis;

2. The third respondents pay the applicant’s costs incurred up and until 8 October 2012 of and incidental to the application on the indemnity basis.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL PRINCIPLES – where basis on which costs should be awarded in issue

Uniform Civil Procedure Rules 1999 (Qld) r 681

Blair v Curran (1939) 62 CLR 464

Campbell, Campbell & Cannon as Executors of the Will of the Estate of the late Donald Campbell, deceased v Campbell [2012] QSC 302

Castillon v P & O Ports Limited (No. 2) [2008] 2 Qd R 219

Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248

Cosgrove & Johns [2000] QCA 157; Di Carlo v Dubois [2002] QCA 225

Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd [2003] QSC 299

Frizzo & Anor v Frizzo & Ors (No 2) [2011] QSC 177

Gillespie v Gillespie & Ors [2012] QDC 212

In The Will of Bruce George Gillespie Deceased [2012] QSC 335

John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201

Kuligowski v Metrobus (2004) 220 CLR 363

Mitchell v Gard (1863) 164 ER 1280

Mitchell v Pacific Dawn Pty Ltd [2003] QSC 179

Oshlack v Richmond River Council (1998) 193 CLR 72

Paroz v Paroz & Ors [2010] QSC 157

Re Estate Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311

Smeaton Hanscomb v Sassoon I Setty, Son & Co (No 2) [1953] 1 WLR 1481

COUNSEL:

C Heyworth-Smith for the applicant

G Lynham for the first and second respondents

SOLICITORS:

Macrossan & Amiet Solicitors for the applicant

SB Wright & Wright and Condie for the first and second respondents

Tucker & Cowen Solicitors for the third respondents

McMeekin J: The applicant applied for the removal of two caveats preventing a grant of probate issuing in respect of the Will of Bruce George Gillespie, deceased dated 3 April 2006 in which she was named as executrix. On 8 November 2012 I ordered that the caveat lodged by the first and second respondents be removed and that the grant of probate issue.[1] The third respondents had withdrawn a caveat having the like effect about two weeks prior to the hearing.
[1] [2012] QSC 335

I gave the parties, including the third respondents, leave to make submissions on costs. They have now done…

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.

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Details

Case: [2012] QSC 369
Decision Date: 23 November 2012

CaseChat Overview and Summary

In the matter of the will of the deceased, the applicant sought a determination regarding the allocation of costs in the proceedings. The dispute arose between several respondents, with the first and second respondents being ordered to pay the applicant's costs on an indemnity basis, and the third respondents being ordered to pay the applicant's costs incurred up until 8 October 2012, also on an indemnity basis. The court was tasked with determining the appropriate basis on which the costs should be awarded in light of the proceedings.

The central legal issue before the court was the determination of the appropriate basis for awarding costs in the case. The court needed to consider the principles governing costs in such circumstances and decide whether the indemnity basis was suitable for the respondents' conduct in the proceedings. The court also needed to consider whether the specific date mentioned for the third respondents was appropriate in light of the events that had occurred.

In reaching its decision, the court considered the principles that govern the allocation of costs in legal proceedings. The court held that the indemnity basis was appropriate given the conduct of the first and second respondents. For the third respondents, the court determined that the specified date of 8 October 2012 was suitable for the allocation of costs based on the events that had transpired up to that point. The court found that the respondents' actions warranted the imposition of costs on an indemnity basis, reflecting their responsibility for the costs incurred by the applicant.

The court's orders were clear and specific. The first and second respondents were ordered to pay the applicant's costs of and incidental to the application on the indemnity basis. Additionally, the third respondents were ordered to pay the applicant's costs incurred up and until 8 October 2012 of and incidental to the application, also on the indemnity basis. This decision provided clarity on the allocation of costs and ensured that the applicant's rights were protected in the proceedings.

Orders

Orders of the court

1. The first and second respondents pay the applicant’s costs of and incidental to the application on the indemnity basis;

2. The third respondents pay the applicant’s costs incurred up and until 8 October 2012 of and incidental to the application on the indemnity basis.

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:	In The Will of Bruce George Gillespie Deceased (No 2) [2012] QSC 369
PARTIES:	GLORIA DAWN GILLESPIE (Applicant) AND GEOFFREY BRUCE GILLESPIE (First Respondent) And WILLIAM BRUCE GILLESPIE (Second Respondent) And MICHAEL PELDAN AND MORGAN LANE as trustees for THE ESTATE OF ANNETTE MIRIAM MAREE GREEN (FORMERLY ROGERS) (A BANKRUPT) (Third Respondents)
FILE NO/S:	S222/2012
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Rockhampton
DELIVERED ON:	23 November 2012
DELIVERED AT:	Rockhampton
HEARING DATE:	On the Papers
JUDGE:	McMeekin J
ORDER:	1. The first and second respondents pay the applicant’s costs of and incidental to the application on the indemnity basis; 2. The third respondents pay the applicant’s costs incurred up and until 8 October 2012 of and incidental to the application on the indemnity basis.
CATCHWORDS:	PROCEDURE – COSTS – GENERAL PRINCIPLES – where basis on which costs should be awarded in issue Uniform Civil Procedure Rules 1999 (Qld) r 681 Blair v Curran (1939) 62 CLR 464 Campbell, Campbell & Cannon as Executors of the Will of the Estate of the late Donald Campbell, deceased v Campbell [2012] QSC 302 Castillon v P & O Ports Limited (No. 2) [2008] 2 Qd R 219 Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 Cosgrove & Johns [2000] QCA 157; Di Carlo v Dubois [2002] QCA 225 Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd [2003] QSC 299 Frizzo & Anor v Frizzo & Ors (No 2) [2011] QSC 177 Gillespie v Gillespie & Ors [2012] QDC 212 In The Will of Bruce George Gillespie Deceased [2012] QSC 335 John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 Kuligowski v Metrobus (2004) 220 CLR 363 Mitchell v Gard (1863) 164 ER 1280 Mitchell v Pacific Dawn Pty Ltd [2003] QSC 179 Oshlack v Richmond River Council (1998) 193 CLR 72 Paroz v Paroz & Ors [2010] QSC 157 Re Estate Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311 Smeaton Hanscomb v Sassoon I Setty, Son & Co (No 2) [1953] 1 WLR 1481
COUNSEL:	C Heyworth-Smith for the applicant G Lynham for the first and second respondents
SOLICITORS:	Macrossan & Amiet Solicitors for the applicant SB Wright & Wright and Condie for the first and second respondents Tucker & Cowen Solicitors for the third respondents