McKnight & Anor v. Ice Skating Queensland (Inc)

[2007] QSC 279

SUPREME COURT OF QUEENSLAND

CITATION:

McKnight & Anor v Ice Skating Queensland (Inc) [2007] QSC 279

PARTIES:

DONALD McKNIGHT and COLIN EDWARD JACKSON AS TRUSTEES OF THE ICE SKATING ASSOCIATION OF QUEENSLAND NO. 1 TRUST
(applicants)
v
ICE SKATING QUEENSLAND (INCORPORATED)
(respondent)

FILE NO:

7211 of 2007

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

4 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

On the Papers

JUDGE:

Chesterman J

ORDER:

The applicants may recover from the trust estate their costs of and incidental to the application to be assessed on the indemnity basis

CATCHWORDS:

PROCEEDURE – COSTS – INTERLOCUTORY APPLICATION – REOVERY OF COSTS - where the applicant trustees were unsuccessful in an action to resist a demand to convey the trust property to the respondent – where nonetheless it was found that the applicants had been justified in seeking the opinion of the court as to the terms of the trust and were not acting irresponsibly – where the respondents were ordered to pay their own costs of the application - whether the applicants were entitled to recover their costs from the trust estate

Re Evans Deceased: The Union Trustee Company of Australia Ltd v Attorney General for Queensland (1957) St.R.Qd. 345, applied

COUNSEL:

Mr P Bickford for the applicant
Mr M Brady for the Respondent

SOLICITORS:

Hawthorn Cuppaidge & Badgery for the applicants
Rogers Matheson Clark for the respondents

1. On 27 September 2007 I directed the applicants, as trustees of the Ice Skating Association of Qld (No. 1) Trust, to make their claim for reimbursement from the trust assets within two weeks and to convey the trust estate to the respondent after retaining, by way of provision, sufficient assets to satisfy their claim.  The parties were to deliver brief submissions as to the appropriate order for costs.  They have done so. 

1. The proceeding is a most unfortunate one involving a dispute between persons all of whom no doubt sincerely desire to promote the sport of ice skating in Queensland.  I expect that both sides honestly believe they are acting in the best interests of the sport. 

1. The respondent’s affairs must be conducted lawfully and the law is on the side of the respondent and those who control it.  The applicants must accept that it is time for them to hand over their control of the property.

1. The respondent has been substantially successful in the litigation but it is not, I think, appropriate that the applicants should pay its costs.  They were, I think, justified in seeking the opinion of the court as to the terms of the trust on which they held the property, and whether the respondent was entitled to call for the trust property.  Their view of the trust was wrong, and I thought clearly so, but they were not acting irresponsibly.  They took the advice of counsel who mounted a respectable argument against the respondent’s contention.

1. In those circumstances it is not appropriate to deprive the applicants of their right to take their costs from the trust estate.  See Re Evans Deceased:  The Union Trustee Company of Australia Ltd v Attorney-General for Queensland (1957) St.R.Qd. 345.  The end result will be that the assets of the respondent will be applied in paying costs of both parties. 

1. Accordingly I order that the applicants may recover from the trust estate their costs of and incidental to the application to be assessed on the indemnity basis.  There should be no other order as to costs.