McDermott v McDermott (No. 3) - [2025] QSC 99

SUPREME COURT OF QUEENSLAND

CITATION:

McDermott v McDermott & Anor (No. 3) [2025] QSC 99

PARTIES:

CHRISTOPHER MARTIN MCDERMOTT

(applicant)

v
SHONA ELIZABETH MCDERMOTT

(first respondent)

HELEN MARY CHISHOLM BUCHANAN
(second respondent)

FILE NO:

BS 7289 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 May 2025

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2025

JUDGES:

Brown J

ORDERS:

1. That the application for leave to appeal the costs order of 18 December 2019 and the costs order made on 20 November 2023 is refused;

2. That the application to set aside the costs order of 18 December 2019 and the costs order made on 20 November 2023 is refused;

3.That the applicant pay the respondents’ costs of the amended applications filed 31 March 2025 and 3 April 2025.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO COSTS – where the applicant started proceedings in the Court of Appeal to appeal a costs order – where the proposed appeal is only in relation to costs and requires leave of the trial judge under s 64 of the Supreme Court of Queensland Act 1991 (Qld) – whether leave to appeal should be granted

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – where the applicant alleges that a previous cost orders against him should be set aside under r 667 and/or r 668 of the UCPR – whether facts have arisen that support a different costs order being open

Amos v Monsour Pty Ltd [2009] 2 Qd R 303, cited
Amos v Wiltshire [2014] QCA 218, cited
Anderson v Pickles Auctions Pty Ltd [2023] QSC 12, cited
EPAS Ltd v James [2007] QSC 49, cited
Lessbrook Pty Ltd (in liq) v Whap [2014] 2 Qd R 102, cited
Goldsmith & Tippett v Resolution Life Australasia Ltd (formerly AMP Life Ltd) [2024] QSC 17, cited
Rockett v Proprietors –“The Sands” BUP 82 [2001] 1 Qd R 307, cited

Supreme Court Act 1991 (Qld), s 64
Uniform Procedure Rules 1999 (Qld), r 667, r 668

COUNSEL:

The applicant appeared on his own behalf

R Whiteford for the respondent

SOLICITORS:

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

BROWN J: Mr McDermott (applicant) sought to appeal an order made on 18 December 2019 that he pay costs of the respondents as executors (respondents) of the application filed 5 December 2019. He requires leave to appeal such an order pursuant to s 64 of the Supreme Court Act 1991 (Qld), given he only seeks leave to appeal a costs order. The President of the Court of Appeal ordered that the appeal be stayed pending leave being obtained from the trial judge who originally made the costs order. As a result I sat in the trial division to…

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. 3)

Details

AGLC: McDermott v McDermott (No. 3) [2025] QSC 99
Case: [2025] QSC 99
Decision Date: 9 May 2025

CaseChat Overview and Summary

In the matter of McDermott v McDermott (No. 3), the applicant sought to appeal a costs order made in the Supreme Court of Queensland. The case involved a dispute over the financial obligations of the parties following the conclusion of legal proceedings. The applicant, who had initially started the proceedings, sought leave to appeal a costs order made on 18 December 2019, as well as another order made on 20 November 2023. Additionally, the applicant sought to set aside these costs orders under the relevant rules of court.

The central legal issues before the court were whether the applicant should be granted leave to appeal the costs order and whether the costs orders should be set aside. The court needed to consider the criteria for granting leave to appeal under section 64 of the Supreme Court of Queensland Act 1991 and whether the circumstances warranted a review of the costs orders under rules 667 and 668 of the Uniform Civil Procedure Rules 1999 (Qld). The applicant argued that new facts had arisen which justified a different outcome regarding the costs orders.

The court found that the application for leave to appeal the costs orders did not meet the criteria for leave under section 64 of the Act. The court was also not persuaded that the applicant had provided sufficient grounds to warrant setting aside the costs orders. Consequently, the court dismissed the application for leave to appeal and the application to set aside the costs orders. The applicant was ordered to pay the respondents’ costs for the amended applications filed on 31 March 2025 and 3 April 2025.

Orders

Orders of the court

1. That the application for leave to appeal the costs order of 18 December 2019 and the costs order made on 20 November 2023 is refused;

2. That the application to set aside the costs order of 18 December 2019 and the costs order made on 20 November 2023 is refused;

3.That the applicant pay the respondents’ costs of the amended applications filed 31 March 2025 and 3 April 2025.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	McDermott v McDermott & Anor (No. 3) [2025] QSC 99
PARTIES:	CHRISTOPHER MARTIN MCDERMOTT (applicant) v SHONA ELIZABETH MCDERMOTT (first respondent) HELEN MARY CHISHOLM BUCHANAN (second respondent)
FILE NO:	BS 7289 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	9 May 2025
DELIVERED AT:	Brisbane
HEARING DATE:	3 April 2025
JUDGES:	Brown J
ORDERS:	1. That the application for leave to appeal the costs order of 18 December 2019 and the costs order made on 20 November 2023 is refused; 2. That the application to set aside the costs order of 18 December 2019 and the costs order made on 20 November 2023 is refused; 3.That the applicant pay the respondents’ costs of the amended applications filed 31 March 2025 and 3 April 2025.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO COSTS – where the applicant started proceedings in the Court of Appeal to appeal a costs order – where the proposed appeal is only in relation to costs and requires leave of the trial judge under s 64 of the Supreme Court of Queensland Act 1991 (Qld) – whether leave to appeal should be granted PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – where the applicant alleges that a previous cost orders against him should be set aside under r 667 and/or r 668 of the UCPR – whether facts have arisen that support a different costs order being open Amos v Monsour Pty Ltd [2009] 2 Qd R 303, cited Amos v Wiltshire [2014] QCA 218, cited Anderson v Pickles Auctions Pty Ltd [2023] QSC 12, cited EPAS Ltd v James [2007] QSC 49, cited Lessbrook Pty Ltd (in liq) v Whap [2014] 2 Qd R 102, cited Goldsmith & Tippett v Resolution Life Australasia Ltd (formerly AMP Life Ltd) [2024] QSC 17, cited Rockett v Proprietors –“The Sands” BUP 82 [2001] 1 Qd R 307, cited Supreme Court Act 1991 (Qld), s 64 Uniform Procedure Rules 1999 (Qld), r 667, r 668
COUNSEL:	The applicant appeared on his own behalf R Whiteford for the respondent
SOLICITORS:	The applicant appeared on his own behalf Merthyr Law for the respondent