McDermott v McDermott (No 2) - [2023] QSC 263

SUPREME COURT OF QUEENSLAND

CITATION:

McDermott v McDermott & Anor (No 2) [2023] QSC 263

PARTIES:

CHRISTOPHER MARTIN MCDERMOTT

(applicant)

v
SHONA ELIZABETH MCDERMOTT (Executor)

(first respondent)

AND

HELEN MARY CHISHOLM BUCHANAN (Executor)
(second respondent)

FILE NO/S:

BS 7289 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

20 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Brown J

ORDER:

The order of the Court is that the respondents are to be paid their costs on the standard basis after 30 September 2021 from the assets left by the Will of William Terrence Chisholm McDermott to the trustees of Christopher Martin McDermott’s Testamentary Trust.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the applicant applied for an order that adequate provision be made for his maintenance and support than was made under his father’s Will and Codicil – where the proceedings were dismissed – where the respondents now seek their costs on the standard basis until 30 September 2021 and thereafter on the indemnity basis to be paid from the assets left by the Will to the trustees of the CMMTT – where, on 16 September 2021, the respondents made an offer to settle to the applicant – whether the respondents are so entitled

Uniform Civil Procedure Rules 1999 (Qld), r 681

Bowyer v Woods (2007) 99 SASR 190, cited
Cachia v Hanes (1994) 179 CLR 403, cited
Daley v Barton & Anor; Barton v Daley [2008] QSC 322, cited
Dawson v Joyner (No 2) [2012] QSC 24, considered
Dobb v Hackett (1993) 10 WAR 532, considered
Draper v Nixon [1999] NSWSC 629, considered
McCusker v Rutter [2010] NSWCA 318, cited
McDermott v McDermott & Anor [2023] QSC 163, cited
Sherborne Estate (No 2); Vanvalen & Anor v Neaves & Anor (2005) 65 NSWLR 268, considered
Singer v Berghouse (1993) 67 ALJR 708, considered
Underwood v Underwod [2009] QSC 107, cited
Jvanich v Kennedy (no 2) [2004] NSWCA 397 cited

COUNSEL:

The applicant appeared on his own behalf
RT Whiteford for the respondents

SOLICITORS:

The applicant appeared on his own behalf
Merthyr Law for the respondents

The Court provided judgment in relation to this matter on 20 July 2023.[1] Defined terms in this judgment have the same meaning as in that judgment.
[1]McDermott v McDermott & Anor [2023] QSC 163.
The Court provided for the parties to make submissions as to costs. The submissions of the respondents and applicant were received on 17 August and 20 September 2023 respectively[2]. The respondents filed an affidavit of Ms Ranson sworn 17 August 2023 by leave. The respondents seek orders that they be paid:
(a)their costs on the standard basis until 30 September 2021; and
(b)thereafter, their costs on the indemnity basis,
to be paid from the assets left by the Will to the trustees of…

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.

Continue reading McDermott v McDermott (No 2)

Details

AGLC: McDermott v McDermott (No 2) [2023] QSC 263
Case: [2023] QSC 263
Decision Date: 20 November 2023

CaseChat Overview and Summary

The case of McDermott v McDermott (No 2) involved a dispute between the applicant and the respondents over the adequacy of the provision for the applicant's maintenance and support under his late father's Will and Codicil. The proceedings were dismissed, and the respondents sought their costs on the standard basis until 30 September 2021 and thereafter on the indemnity basis, to be paid from the assets left by the Will to the trustees of the Christopher Martin McDermott Testamentary Trust (CMMTT). On 16 September 2021, the respondents made an offer to settle to the applicant. The central legal issue before the court was whether the respondents were entitled to the indemnity costs from the assets left by the Will to the trustees of the CMMTT.

The court considered the relevant considerations for indemnity costs, which include whether the applicant's claim was frivolous or vexatious, whether the applicant had acted unreasonably in bringing or continuing the proceedings, and whether there were any other factors that warranted indemnity costs. The court noted that the applicant had not succeeded in his claim and that the proceedings were dismissed. Additionally, the offer to settle made by the respondents on 16 September 2021 was not accepted by the applicant. The court found that the applicant's claim was not well-founded and that the applicant had acted unreasonably in bringing and continuing the proceedings.

Accordingly, the court ordered that the respondents were to be paid their costs on the standard basis until 30 September 2021 and thereafter on the indemnity basis from the assets left by the Will of William Terrence Chisholm McDermott to the trustees of the CMMTT. The court concluded that the respondents were entitled to the indemnity costs as the applicant's claim was not well-founded, and the applicant had acted unreasonably in bringing and continuing the proceedings. The court's decision was based on the specific circumstances of the case and the relevant considerations for indemnity costs.

Orders

Orders of the court

The order of the Court is that the respondents are to be paid their costs on the standard basis after 30 September 2021 from the assets left by the Will of William Terrence Chisholm McDermott to the trustees of Christopher Martin McDermott’s Testamentary Trust.

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:	McDermott v McDermott & Anor (No 2) [2023] QSC 263
PARTIES:	CHRISTOPHER MARTIN MCDERMOTT (applicant) v SHONA ELIZABETH MCDERMOTT (Executor) (first respondent) AND HELEN MARY CHISHOLM BUCHANAN (Executor) (second respondent)
FILE NO/S:	BS 7289 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	20 November 2023
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Brown J
ORDER:	The order of the Court is that the respondents are to be paid their costs on the standard basis after 30 September 2021 from the assets left by the Will of William Terrence Chisholm McDermott to the trustees of Christopher Martin McDermott’s Testamentary Trust.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the applicant applied for an order that adequate provision be made for his maintenance and support than was made under his father’s Will and Codicil – where the proceedings were dismissed – where the respondents now seek their costs on the standard basis until 30 September 2021 and thereafter on the indemnity basis to be paid from the assets left by the Will to the trustees of the CMMTT – where, on 16 September 2021, the respondents made an offer to settle to the applicant – whether the respondents are so entitled Uniform Civil Procedure Rules 1999 (Qld), r 681 Bowyer v Woods (2007) 99 SASR 190, cited Cachia v Hanes (1994) 179 CLR 403, cited Daley v Barton & Anor; Barton v Daley [2008] QSC 322, cited Dawson v Joyner (No 2) [2012] QSC 24, considered Dobb v Hackett (1993) 10 WAR 532, considered Draper v Nixon [1999] NSWSC 629, considered McCusker v Rutter [2010] NSWCA 318, cited McDermott v McDermott & Anor [2023] QSC 163, cited Sherborne Estate (No 2); Vanvalen & Anor v Neaves & Anor (2005) 65 NSWLR 268, considered Singer v Berghouse (1993) 67 ALJR 708, considered Underwood v Underwod [2009] QSC 107, cited Jvanich v Kennedy (no 2) [2004] NSWCA 397 cited
COUNSEL:	The applicant appeared on his own behalf RT Whiteford for the respondents
SOLICITORS:	The applicant appeared on his own behalf Merthyr Law for the respondents