Menzies v Menzies (No 2)

DISTRICT COURT OF QUEENSLAND

CITATION:

Menzies & Anor v Menzies (No 2) [2019] QDC 268

PARTIES:

ROBYN LEIGH MENZIES
(first applicant)

and

GLENN DONALD MENZIES
(second applicant)

v

SHELLY GAYE MENZIES as Executor of the Estate of the Late Donald Menzies
(respondent)

FILE NO/S:

BD No 4064 of 2016

DIVISION:

PROCEEDING:

Originating application – Further Orders

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Sheridan DCJ

ORDER:

1.     The applicants’ costs up to 5 July 2018 be paid from the estate fixed in the amount of $76,000.00;

2.     The applicants’ costs incurred after 5 July 2018 be paid from the estate fixed in the amount of $45,000.00;

3.     The respondent’s costs up to 5 July 2018 be paid from the estate fixed in the amount of $71,496.00;

4.     The respondent’s costs incurred after 5 July 2018 not be reimbursed from the estate.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – ORDERS AND OTHER PROCEDURAL MATTERS – COSTS – GENERALLY – where the estate is modest – where offers to settle were made – whether costs should follow the event or some other order should be made – whether costs of both parties should be capped or fixed

Uniform Civil Procedure Rules 1999, r 352, r 360, r 681,

r 687, r 700A

Baker v Baker (No 2) [2019] QDC 140

COUNSEL:

A Fraser for the applicants
R Ivessa for the respondent

SOLICITORS:

Bennett Carroll Lawyers for the applicants
CNG Law for the respondent

Background

1. I delivered judgment in the application for family provision on 4 December 2019. 

1. The applicants succeeded in the application.  In lieu of the entire estate being provided to the respondent, Shelly Gaye Menzies, I ordered that the residue of the estate be distributed as follows:

(a)        To each of the applicants, Robyn Leigh Menzies and Glenn Donald Menzies– 20%;

(b)        To Shelly Gaye Menzies – 60%.

1. The orders made included directions for the filing of submissions on costs.

1. As recorded in the reasons, as at the date of trial, the quantum of the estate was found to be approximately $815,000.00.  At the time of the trial, the applicants’ legal costs at the end of trial were estimated to be $181,277.30, and the respondent’s legal costs were estimated to be $107,244.48.

Submissions

1. In making submissions on costs on behalf of the applicants, Mr Fraser referred to two offers of compromise made by the applicants which were not accepted by the respondent.  It was submitted that, on any view, the applicants had been successful in obtaining an order for provision that substantially exceeded the quantum of the second offer made on 5 July 2018 (the Second Offer). 

1. The Second Offer was stated to be in accordance with Chapter 9, Part 5 of the Uniform Civil Procedure Rules 1999 (UCPR).  It was open for 14 days and the substantive terms were that:

(a)        Robyn receive 17.5% of the net proceeds of the sale of the property;