Johnston v Herrod

Case [2012] QCA 361

SUPREME COURT OF QUEENSLAND

CITATION:

Johnston & Anor v Herrod & Ors [2012] QCA 361

PARTIES:

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

FILE NO/S:

Appeal No 4593 of 2012
SC No 501 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Townsville

DELIVERED ON:

18 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

22 October 2012

JUDGES:

Muir and Gotterson JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal be dismissed with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where parties to the proceedings are siblings and deceased was their father – where deceased in a cattle property partnership with first and second respondents – where deceased’s interest in partnership and residue was left to third respondent and appellants in equal shares – where there were meetings in which discussions took place with respect to the appellants assigning their interest in partnership to first and second appellants for monetary sum – where dispute arose with respect to respondents interests under partnership agreement – where primary judge found in favour of appellants and ordered respondents to pay appellants’ costs of and incidental to the proceeding to be assessed on the standard basis – where appellants submitted costs should have been awarded on an indemnity basis – where appellants submitted that when assessing costs primary judge failed to take into account his findings regarding the conduct of respondents – where appellants submitted respondents conduct was sufficiently reprehensible to warrant an indemnity costs order – where appellants submitted the primary judge erred by, in effect, penalising the appellants for the respondents’ conduct – whether costs should be assessed on the indemnity basis

Barrett Property Group Ltd v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823, considered
Capital Finance Corp (Australasia) Pty Ltd & Ors v Peter Pan Management Pty Ltd (in liq) & Anor [2003] VSCA 93, considered
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536, considered
Di Carlo v Dubois [2002] QCA 225, considered
Herrod & Ors v Johnston & Anor [2012] QCA 360, considered
Johnston & Anor v Herrod & Ors [2012] QSC 107, considered
Johnston & Anor v Herrod & Ors [2012] QSC 98, considered
Martinovic v Chief Executive, Queensland Transport [2005] 1 Qd R 502; [2005] QCA 55, cited
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257, cited
Underwood v Underwood [2009] QSC 107, cited
White Industries (Qld) Pty Ltd v Flower & Hart (A Firm) (1998) 156 ALR 169; [1998] FCA 806, considered

COUNSEL:

R N Traves SC, with C Heyworth-Smith, for the appellants
D Fraser QC for the…

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Johnston & Anor v Herrod & Ors [2012] QCA 361
Case
[2012] QCA 361
Decision Date

CaseChat Overview and Summary

Johnston and others versus Herrod and others involved a dispute among siblings regarding the division of their deceased father's estate and partnership interests. The court had to determine whether the costs of the proceedings should be awarded on a standard or indemnity basis, given the contentious nature of the interactions between the parties.

The central issue was whether the costs incurred by the appellants should be awarded on an indemnity basis, rather than the standard basis ordered by the primary judge. The appellants argued that the primary judge's decision to award standard costs was inappropriate given the reprehensible conduct of the respondents, which included threats and coercion. They contended that the primary judge's approach effectively penalised them for the conduct of the respondents.

The court considered the nature of the conduct of the respondents and the primary judge's findings regarding that conduct. It noted that the primary judge had detailed the reprehensible behaviour of the respondents but had concluded that it did not warrant indemnity costs. The court held that the primary judge's assessment of the costs was correct, and there was no basis to overturn the decision on the indemnity costs issue. The appeal was dismissed, and the respondents were awarded costs.

The court ordered that the appeal be dismissed with costs, affirming the primary judge's assessment and refusal to award indemnity costs.

Orders

Orders of the court

The appeal be dismissed with costs.

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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