JPD as Guardian v DMS as Trustee (No 2) - [2022] QSC 215

SUPREME COURT OF QUEENSLAND

CITATION:

JPD as Guardian v DMS as Trustee (No 2) [2022] QSC 215

PARTIES:

REDACTED

FILE NO/S:
161 of 2022

211 of 2022

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:
Supreme Court of Queensland at Cairns

DELIVERED EX-TEMPORE ON:

2 September 2022

DELIVERED AT:

Cairns

HEARING DATES:

2 September 2022

JUDGE:

Henry J

ORDERS:

1. In matter 161 of 2022, the new trustee, Ms Bennett, will pay each party’s costs from trust assets, such costs to be assessed on an indemnity basis if not agreed.

2. In matter 211 of 2022, the new trustee, Ms Bennett, will pay each party’s costs from trust assets, such costs to be assessed on an indemnity basis if not agreed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – COSTS OUT OF FUND OR PROPERTY – BASIS ON WHICH COSTS ORDERED – TRUSTEE PERSONAL REPRESENTATIVE – GENERALLY – where orders were made granting the application for the litigation guardian for removal of the trustee – where a cross application of the trustee against the children was summarily dismissed – where argument for costs was later heard – where the father argues the trustee should not be paid costs out of the estate – where misconduct of the trustee was not found – whether the general rule that the trustee is allowed costs out of the estate should not be followed

Uniform Civil Procedure Rules (Qld) r 700

Cardaci v Filippo Primo Cardaci (as executor(s) of estate of Marco Antonio Cardaci [No 5]) (2021) WASC 331 (S), distinguished
Miller v Cameron (1936) 54 CLR 572, followed
Wareham & Anor v Marsella [2020] VSCA 118, cited

COUNSEL:
C Ryall with J Seccull for the applicant in matter 161/22 and for the respondents in matter 211/22

D de Jersey KC for the respondents in matter 161/22 and for the applicants in matter 211/22

SOLICITORS:
The Will and All for the applicant in matter 161/22 and for the respondents in matter 211/22

MacDonnells Law for the respondents in matter 161/22 and for the applicants in matter 211/22

HENRY J: On 30 August I made orders in matter 161 of 2022 granting an application by the litigation guardian, who is the father of the child beneficiaries of trusts, removing the trustee of those trusts as trustee thereof and as executor of the estate of the settlor of those trusts, the children’s mother. Further, in matter 211 of 2022 I dismissed a cross application of the trustee against the children in which the father appeared for them as litigation guardian. I reserved argument on and consideration of costs until today when the matter returned before me and I heard argument.

It is common ground costs should follow the event in both applications so far as the father’s position is concerned. Further, in circumstances where the father appeared in both applications in a representative capacity for the child beneficiaries of the trusts, it is uncontroversial his costs should be on 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

Case: [2022] QSC 215
Decision Date: 2 September 2022

CaseChat Overview and Summary

In the matter of JPD as Guardian v DMS as Trustee (No 2), the dispute involved the removal of a trustee and the subsequent costs associated with the litigation. The parties were the litigation guardian, JPD, and the trustee, DMS, in their capacity as the personal representative and trustee of the estate of a deceased person. The dispute was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the trustee, who was also a party to the litigation, should be permitted to recover costs from the estate. This issue arose from a cross-application by the trustee against the children of the deceased, which was summarily dismissed. The litigation guardian argued that, given the trustee's misconduct was not substantiated, the general rule allowing trustees to recover costs out of the estate should not apply. Instead, the guardian proposed that the trustee should bear personal responsibility for the costs incurred.

The court considered the nature of the trustee's role and the principles governing costs recovery in such matters. The court noted that while trustees generally have the right to recover costs from the estate, this right is not absolute and may be subject to exceptions based on misconduct or other factors. In this instance, the court found that the trustee's cross-application did not demonstrate misconduct or any other grounds that would warrant a deviation from the general rule. Consequently, the court ordered that the trustee, Ms Bennett, would be responsible for paying the costs of each party from trust assets, to be assessed on an indemnity basis if not agreed. This decision was upheld in both matter 161 of 2022 and matter 211 of 2022.

Orders

Orders of the court

1. In matter 161 of 2022, the new trustee, Ms Bennett, will pay each party’s costs from trust assets, such costs to be assessed on an indemnity basis if not agreed.

2. In matter 211 of 2022, the new trustee, Ms Bennett, will pay each party’s costs from trust assets, such costs to be assessed on an indemnity basis if not agreed.

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:	JPD as Guardian v DMS as Trustee (No 2) [2022] QSC 215
PARTIES:	REDACTED
FILE NO/S:	161 of 2022 211 of 2022
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Cairns
DELIVERED EX-TEMPORE ON:	2 September 2022
DELIVERED AT:	Cairns
HEARING DATES:	2 September 2022
JUDGE:	Henry J
ORDERS:	1. In matter 161 of 2022, the new trustee, Ms Bennett, will pay each party’s costs from trust assets, such costs to be assessed on an indemnity basis if not agreed. 2. In matter 211 of 2022, the new trustee, Ms Bennett, will pay each party’s costs from trust assets, such costs to be assessed on an indemnity basis if not agreed.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – COSTS OUT OF FUND OR PROPERTY – BASIS ON WHICH COSTS ORDERED – TRUSTEE PERSONAL REPRESENTATIVE – GENERALLY – where orders were made granting the application for the litigation guardian for removal of the trustee – where a cross application of the trustee against the children was summarily dismissed – where argument for costs was later heard – where the father argues the trustee should not be paid costs out of the estate – where misconduct of the trustee was not found – whether the general rule that the trustee is allowed costs out of the estate should not be followed Uniform Civil Procedure Rules (Qld) r 700 Cardaci v Filippo Primo Cardaci (as executor(s) of estate of Marco Antonio Cardaci [No 5]) (2021) WASC 331 (S), distinguished Miller v Cameron (1936) 54 CLR 572, followed Wareham & Anor v Marsella [2020] VSCA 118, cited
COUNSEL:	C Ryall with J Seccull for the applicant in matter 161/22 and for the respondents in matter 211/22 D de Jersey KC for the respondents in matter 161/22 and for the applicants in matter 211/22
SOLICITORS:	The Will and All for the applicant in matter 161/22 and for the respondents in matter 211/22 MacDonnells Law for the respondents in matter 161/22 and for the applicants in matter 211/22