TREVOR JOHN JONES (as executor of the Will of George Howard Jones deceased)
(Respondent)
FILE NO/S:
S3484 of 2003
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court Rockhampton
DELIVERED ON:
14 November 2012
DELIVERED AT:
Rockhampton
HEARING DATE:
3 October 2012
JUDGE:
McMeekin J
ORDERS:
1. The applicant is given leave to discontinue;
2. The applicant pay the costs of the respondent limited to the sum of $185,000;
3. The parties have liberty to apply within seven days.
CATCHWORDS:
PROCEDURE – COSTS – FAMILY MAINTENANCE AND PROVISION APPLICATION – where family maintenance and provision application withdrawn – whether and on what basis costs should be awarded
McMeekin J: In April 2003 Mr Laurence Jones filed an application for further and better provision out of his late father’s estate under Part IV of the Succession Act1981 (Qld). His father had died on 18 July 2002. The trial in the matter was set to commence on 9 October 2012. On 3 October 2012 Mr Jones asked that his application be struck out. At issue is the question of costs.
The dispute is of some considerable significance. The respondent’s costs and outlays are estimated to be in the…
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
AGLC
Jones v Jones [2012] QSC 342
Case
[2012] QSC 342
Decision Date
CaseChat Overview and Summary
Jones v Jones involved a dispute over costs in the context of a family maintenance and provision application that was subsequently withdrawn. The Family Court was tasked with determining whether and on what basis costs should be awarded. The primary legal issue was whether the rejection of the offer to settle was unreasonable, given that the applicant had withdrawn the application without a curial determination of the merits. The court considered principles from various cases, including Johnson v Clancy and Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin, which highlight the discretion of the court in such matters.
The court examined whether the rejection of the offer was unreasonable and found that the executor's assumption that the late discontinuance demonstrated a lack of merit in the proceedings was not persuasive. The court noted that there had been no determination of the merits and that the applicant was unable to advance arguments in a logical manner, further complicating the assessment of reasonableness. The court also considered the Queensland rule, which is different from the New South Wales rule, and found that the Queensland rule does not provide an automatic starting point for costs but offers some guidance. The court concluded that unless a party acted "so unreasonably" as to justify an order for costs, no costs should be awarded.
The court awarded costs to the respondent, limited to the sum of $185,000, and granted the applicant leave to discontinue. The parties were also given liberty to apply within seven days. This decision underscores the importance of the reasonableness of the conduct of the parties in cases where applications are withdrawn and the need for careful consideration of the merits and circumstances of each case.
Orders
Orders of the court
1. The applicant is given leave to discontinue;
2. The applicant pay the costs of the respondent limited to the sum of $185,000;
3. The parties have liberty to apply within seven days.
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
It is relevant to note that the offer here does not in fact meet the conditions of r361 which regulates offers to settle made by defendants. That is so because the rule proceeds on the premise of partial success by the plaintiff. That is evident from the terms of r361 which provides that if a defendant makes an offer to settle which is not accepted by the plaintiff who then obtains a judgment no more favourable than the offer, then the defendant is entitled to its costs from the date of the offer on the indemnity basis. Here the applicant has not obtained a judgment. Hence the entitlement to indemnity costs is not the default position provided for under the rule. Helman J thought that such offers were best treated as Calderbank offers and so the offer is relevant but not decisive - Kozak v Matthews [2007] QSC 204. I intend to follow that approach. The relevant issue in this form of litigation would seem to be whether the rejection of the offer was unreasonable.[19] [19]While the dispute before him was unrelated to family provision applications see the discussion by Chesterman J in Emanuel Management Pty Ltd (In Liq) v Foster’s Brewing Group Pty Ltd [2003] QSC 299 at [37]-[39]. The lack of any curial determination of the merits is obviously a complicating feature of the case. McHugh J considered the principles applicable in this situation in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin[20]:[20] (1997) 186 CLR 622 at pp624-625 A comprehensive summary of the considerations that should influence the exercise of the discretion in a case where one party withdraws can be found in Johnson v Clancy [2010] NSWSC 1301. Hallen AsJ was there dealing with r 12.1 and r 42.19 of the Uniform Civil Procedure Rules 2005 of New South Wales which included a provision that “unless the Court otherwise orders” a plaintiff will be required to pay the defendant’s costs in the event of a discontinuance. His Honour stated at para 21: I observe that the Queensland rule is in different terms to that considered by Hallen AsJ – there is no automatic starting point laid down although obviously r 307(1) does provide some guide. The rule is silent as to the onus. With those principles in mind I turn to the arguments in this case. The difficulty in the case is that the executor argues from the assumption that the late discontinuance by the applicant demonstrates a lack of merit in the bringing of the proceedings, but I am by no means persuaded of that. There has been no curial determination here of the matters in issue. That circumstance presents some difficulty in judging the reasonableness of the conduct of the applicant. I am considerably hampered too by the fact that the applicant was incapable of advancing arguments in his own cause in any logical or relevant way. McHugh J’s approach in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin was that where the court could not determine the merits of the application it needed to be shown that one party had acted “so unreasonably” as to justify an order for costs being made in favour of the other party.