Lindsay v McGrath - [2015] QCA 249

SUPREME COURT OF QUEENSLAND

CITATION:

Lindsay v McGrath [2015] QCA 249

PARTIES:

GEOFFREY DAVID LINDSAY
(appellant)
v
HEATHER DAWN McGRATH
(respondent)

FILE NO/S:

Appeal No 9012 of 2014
SC No 5011 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 4 September 2014

DELIVERED ON:

1 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Gotterson and Philippides JA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. The appellant pay the respondent’s costs of the appeal, to be assessed on a standard basis.

2. The appellant bear his own costs of the appeal personally, with no right of reimbursement out of the estate of the deceased.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – where the appellant failed at first instance – where the appellant’s appeal was dismissed – where the parties were given leave to make submissions as to costs – whether the appellant should pay the respondent’s costs of the appeal and whether the appellant’s costs should be paid out of the deceased’s estate

COUNSEL:

No appearance by the appellant, the appellant’s submissions were heard on the papers
No appearance by the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

Hall Payne Lawyers for the appellant
Weldon, Zande & Reddy for the respondent

GOTTERSON JA: I agree with the orders proposed by Boddice J, and with his Honour’s reasons for them.
PHILIPPIDES JA: Given that the appellant’s appeal was dismissed by the majority of the Court, I agree with the orders proposed by Boddice J.
BODDICE J: On 27 October 2015, the appellant’s appeal was dismissed. The parties were given leave to make submissions on costs. At issue is whether the appellant should pay the respondent’s costs of the appeal and whether the appellant’s costs should be paid out of the deceased’s estate.

Submissions

The appellant submits that notwithstanding his lack of success, the appeal was brought reasonably, in his capacity as personal representative of the deceased estate. Whilst he had a personal interest in the outcome of the appeal, that fact does not constitute a sufficient basis for the Court to depart from the prima facie position that whilst he ought to pay the respondent’s costs of the appeal on a standard basis, the appellant’s costs of the appeal should be paid from the estate, on an indemnity basis. Alternatively, the appellant submits there should be no order as to costs in all the circumstances.
The respondent submits that whilst it may have been reasonable for the appellant to bring the initial application, it was not reasonable for the appellant to appeal the decision at first instance. The appeal was not in the interests of the estate. It was in his own personal interests as principal beneficiary under the informal documents sought to be established as a valid Will. The estate should not…

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: [2015] QCA 249
Decision Date: 1 December 2015

CaseChat Overview and Summary

In the case of Lindsay v McGrath, the appeal was brought by the appellant, Lindsay, against the respondent, McGrath. The dispute originated from a lower court's decision which the appellant sought to overturn. The High Court of Australia was tasked with resolving the issues arising from this appeal, particularly focusing on the allocation of costs associated with the proceedings. The central legal issues revolved around the circumstances under which the appellant should be liable for the respondent's costs of the appeal and whether the appellant's own costs should be reimbursed from the estate of a deceased individual.

The court considered the general principle that the losing party in legal proceedings is typically ordered to pay the winner's costs. However, in this instance, the appellant's appeal was dismissed, and the appellant had already unsuccessfully contested the initial decision at the first instance. Given these facts, the court deliberated on whether to deviate from the usual rule that the unsuccessful party should bear the costs of the appeal. Additionally, the court examined whether the appellant's personal costs, incurred during the appeal process, could be reimbursed from the estate of a deceased person, or if the appellant should bear these costs himself. The court's reasoning hinged on the established principles of legal costs and the unique circumstances of this case, particularly the appellant's failure in both the initial and appellate stages of the litigation.

In its decision, the court held that the appellant should pay the respondent's costs of the appeal, to be assessed on a standard basis. Furthermore, the court determined that the appellant's own costs of the appeal should be borne personally, without any right of reimbursement from the estate of the deceased. This ruling was grounded in the appellant's overall failure in the proceedings and the precedent that the unsuccessful party should be responsible for the costs incurred by the successful party. The final orders of the court were that the appellant pay the respondent's costs of the appeal, to be assessed on a standard basis, and that the appellant bear his own costs of the appeal personally, with no right of reimbursement out of the estate of the deceased.

Orders

Orders of the court

1. The appellant pay the respondent’s costs of the appeal, to be assessed on a standard basis.

2. The appellant bear his own costs of the appeal personally, with no right of reimbursement out of the estate of the deceased.

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:	Lindsay v McGrath [2015] QCA 249
PARTIES:	GEOFFREY DAVID LINDSAY (appellant) v HEATHER DAWN McGRATH (respondent)
FILE NO/S:	Appeal No 9012 of 2014 SC No 5011 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 4 September 2014
DELIVERED ON:	1 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Gotterson and Philippides JA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. The appellant pay the respondent’s costs of the appeal, to be assessed on a standard basis. 2. The appellant bear his own costs of the appeal personally, with no right of reimbursement out of the estate of the deceased.
CATCHWORDS:	PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – where the appellant failed at first instance – where the appellant’s appeal was dismissed – where the parties were given leave to make submissions as to costs – whether the appellant should pay the respondent’s costs of the appeal and whether the appellant’s costs should be paid out of the deceased’s estate
COUNSEL:	No appearance by the appellant, the appellant’s submissions were heard on the papers No appearance by the respondent, the respondent’s submissions were heard on the papers
SOLICITORS:	Hall Payne Lawyers for the appellant Weldon, Zande & Reddy for the respondent