Kowalski v Public Trustee (No 2)

SUPREME COURT OF QUEENSLAND

CITATION:

Kowalski v Public Trustee & Ors (No 2) [2011] QSC 384

PARTIES:

ELIZABETH ANN KOWALSKI

(Applicant)

And

THE PUBLIC TRUSTEE AS EXECUTOR FOR THE ESTATE OF STAN KOWALSKI (DECEASED)

(First Respondent)

And

LEIGH ANNE-LOUISE KOWALSKI

(Second Respondent)

And

JOHN SHANAHAN AND JOANNE DUNN AS TRUSTEES OF THE BANKRUPT ESTATE OF LEIGH ANNE-LOUISE KOWALSKI

(Third Respondent)

FILE NO/S:

S243 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

12 December 2011

DELIVERED AT:

Rockhampton

HEARING DATE:

On the Papers

JUDGE:

McMeekin J

ORDER:

The orders are in accordance with the draft annexed to these reasons marked “A”.1.   

The second respondent’s request for a stay of proceedings is refused.2.      

CATCHWORDS:

PROCEDURE – COSTS – on which basis costs should be awarded – costs of application of subpoenaed evidence

PROCEDURE – STAY OF PROCEEDINGS – where second respondent will be appealing original decision – whether stay of execution of orders ought to be granted

Uniform Civil Procedure Rules 1999 (Qld)

Asia Pacific International P/L v Peel Valley Mushrooms & Anor [2000] QSC 168

Collett v Knox[2010] QSC 132

Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] QCA 322

Elphick v MMI   General Insurance Ltd & Anor [2002] QCA 347

Kowalski v Public Trustee & Ors  [2011] QSC 323

Raschilla & Anor v Westpac Banking Corporation [2010] QCA 255

Underwood & Anor v Sheppard [2010] QCA 76

COUNSEL:

M Rothery (solicitor) for the applicant

J Otto for the first respondent

Second respondent in person

No appearance for the third respondent

SOLICITORS:

South & Geldard for the applicant

Official Solicitor to the Public Trustee of Queensland for the first respondent

Second respondent in person

No appearance for the third respondent

1. McMeekin J:  I heard this matter on the papers. On 10 November I gave reasons. I proposed altering the terms of an agreement reached, subject to sanction, between the applicant and the first respondent to resolve the applicant’s claim for family provision.[1] I directed that the parties provide submissions as to the orders that would give effect to these alterations and as to any orders for costs that should be made.

   [1]Kowalski v Public Trustee & Ors  [2011] QSC 323

1. The first respondent has provided a draft form of orders intending to give effect to my reasons with which the applicant agrees. As well the first respondent submits that I should make the following orders:

(a)        there be no order as to the applicants’ costs;

(b)        that the first respondent’s costs be paid out of the estate on the indemnity basis;

(c)        that the second respondent be ordered to pay the first respondent’s costs of the second respondent’s application for leave to inspect subpoenaed documents;

(d)        that there be no other order as to the second respondent’s costs; and

(e)        that there be no order as to the costs of the third respondents.

1. The second respondent filed submissions that, for the most part, argued against the merits…