Pickersgill v Pickersgill - [2019] QSC 268

SUPREME COURT OF QUEENSLAND

CITATION:

Pickersgill v Pickersgill & Ors [2019] QSC 268

PARTIES:

KEVIN JOSEPH PICKERSGILL

(applicant)

v
MARGUERITE AMELIA PICKERSGILL BY HER LITIGATION GUARDIAN VICKI JACKSON

(first respondent)
and

JANELLE HELLENORA FORREST

(second respondent)

and

LEANNE AMELIA WINN

(third respondent)
and

GRAHAM CHARLES PICKERSGILL

(first respondent by counterclaim)
and

WILLIAM PICKERSGILL

(second respondent by counterclaim)
and

MICHAEL THOMAS PICKERSGILL

(third respondent by counterclaim)

FILE NO/S:

BS No 5159 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

5 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2019

JUDGE:

Davis J

ORDER:

There be no order as to costs in favour of any party apart from the order of Mullins J made on 5 July 2019.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – FORM AND SETTLING OF COSTS ORDERS – where the original proceedings were resolved – where the parties made written submissions as to costs – where the proceeding was adversarial – whether there should be an order as to costs

Powers of Attorney Act 1998 (Qld), s 115, s 116

CAC v Secretary, Department of Family and Community Services (No 2) [2015] NSWSC 344, cited

COUNSEL:

D R Cooper QC for the Applicant

C Brewer for the First Respondent
J Otto for the Second and Third Respondents

No appearance for the Respondents by counterclaim

SOLICITORS:

Creevey Russell Lawyers for the Applicant

South Geldard Solicitors for the First Respondent

Grant & Simpson Lawyers for the Second and Third Respondents

On 21 August 2019 the proceedings were resolved by the making of orders, which were sought by all parties who appeared,[1] in these terms:
[1]     The respondents by counterclaim did not appear.
“1. Pursuant to section 116 of the Powers of Attorney Act 1998 (Qld):
(a)The enduring powers of attorney made by Marguerite Amelia Pickersgill dated 15 January 2019 and 11 September 2018 are revoked;
(b)Kevin Joseph Pickersgill, Janelle Helenora Forrest and Leanne Amelia Winn are removed as attorneys under the enduring power of attorney made by Marguerite Amelia Pickersgill dated 22 April 2013;
(c)Mr Dennis Offermans and Mr Michael Brennan (who are ‘the attorneys’) are appointed severally as attorneys under the enduring power of attorney made by Marguerite Amelia Pickersgill dated 22 April 2013 (The Enduring Power of Attorney);
(d)Clause 4 of the Enduring Power of Attorney is deleted;
(e)A clause is added to The Enduring Power of Attorney: ‘Clause 4: The attorneys, being accountants, may charge reasonable fees for fulfilling their role as attorneys and may recover reasonable costs and disbursements’;”
2. Pursuant to section 115(a) of the Powers of Attorney Act 1998 (Qld) it is declared that the powers of attorneys under The Enduring Power of Attorney of Marguerite Amelia Pickersgill dated 22 April 2013 begin today;
3.     The trial set down for hearing for five days commencing 23 September 2019 in Rockhampton is delisted;
4.      The proceedings are otherwise dismissed;
5.     All parties, apart from the First Respondent, may make written…

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 Pickersgill v Pickersgill

Details

AGLC: Pickersgill v Pickersgill [2019] QSC 268
Case: [2019] QSC 268
Decision Date: 5 November 2019

CaseChat Overview and Summary

The case of Pickersgill v Pickersgill involves a dispute amongst the children of the late Alfred Pickersgill and his widow, Mrs Pickersgill, over costs incurred in litigation. The High Court was required to decide on the costs that should be borne by the various parties involved in the proceedings. The main issues were whether the applicant, Kevin Pickersgill, should be awarded his costs against the second and third respondents, and whether the second and third respondents, Janelle and Leanne, should be awarded their costs against Kevin. The court had to consider the adversarial nature of the proceedings and the written submissions made by the parties regarding the costs.

The court found that the proceedings were indeed adversarial in nature and that the submissions made by the parties were relevant to the determination of costs. However, the court was also mindful of the fact that the dispute had been resolved and that the costs incurred were substantial. The court concluded that there should be no order as to costs in favour of any party apart from the order of Mullins J made on 5 July 2019. This meant that the parties were to bear their own costs and that no party was entitled to recover costs from any other party.

In light of the above, the court made an order that there be no order as to costs in favour of any party apart from the order of Mullins J made on 5 July 2019. This meant that the parties were to bear their own costs and that no party was entitled to recover costs from any other party. The court's decision was based on a consideration of the adversarial nature of the proceedings and the submissions made by the parties regarding costs. The court was also mindful of the fact that the dispute had been resolved and that the costs incurred were substantial. Overall, the court's decision was a pragmatic one that took into account the realities of the situation and the need to avoid unnecessary litigation costs.

Orders

Orders of the court

There be no order as to costs in favour of any party apart from the order of Mullins J made on 5 July 2019.

Background

Background to the litigation

Written submissions have been received in relation to costs. The positions adopted by the various parties are:(i)The applicant seeks his costs against the second and third respondents;(ii)The second and third respondent seek their costs against the applicant;[2](iii)No submissions have been made by or against the respondents by counterclaim;(iv)No party seeks costs against the Mrs Pickersgill;(v)Mrs Pickersgill does not seek costs against any other party.[2] Apart from the costs the subject of the order of Mullins J.Background Mrs Pickersgill is the widow of Alfred Pickersgill (Mr Pickersgill) who died on 18 October 2014. Mr and Mrs Pickersgill had six children, being four sons and two daughters. Those siblings have produced 15 grandchildren. The six offspring of Mr and Mrs Pickersgill are all parties to the current litigation. Mrs Pickersgill was born on 10 August 1934. She is now 85 years of age. Before their retirement in the late 1990’s, Mr and Mrs Pickersgill conducted business as graziers and accumulated significant wealth. Agricultural properties were owned by Mr and Mrs Pickersgill. In particular, one called “Washpool” and another called “Brooklee”. Ultimately, Washpool was transferred to the applicant (Kevin Pickersgill) and the first and second respondents by counterclaim (Graham Pickersgill and William Pickersgill), and Brooklee was transferred to the third respondent by counterclaim (Michael Pickersgill). There appears to be some disagreement as to the terms of those transfers but that is not relevant for present considerations. Mrs Pickersgill’s main assets are a house in Davison Street, Gracemere,[3] and money held with the Suncorp Bank. [3] A town near Rockhampton. In September 2011, before Mr Pickersgill’s death, Mrs Pickersgill executed a Will where she appointed Mr Pickersgill as executor and in the alternative, William Pickersgill,[4] Kevin Pickersgill[5] and Janelle Forrest[6] as executors. By that Will, and in the event that Mr Pickersgill predeceased Mrs Pickersgill, Davison Street and Mrs Pickersgill’s jewellery were left to her daughters, Janelle Forrest and Leanne Winn, the second and third respondents, with the residue to be divided between all six children.[4] The second respondent by counterclaim.[5] The applicant.[6] The second respondent. In April 2013, while Mr Pickersgill was still alive, Mrs Pickersgill executed an Enduring Power of Attorney (the 2013 Enduring Power of Attorney) appointing Kevin,[7] Janelle[8] and Leanne[9] as her attorneys for financial and health matters. The powers of the attorneys became operative upon Mrs Pickersgill becoming incapacitated and the attorneys were to exercise their powers by majority decision. [7] The applicant.[8] The second respondent.[9] The third respondent. In 2015 and 2016, large sums of money were paid by cheque from Mrs Pickersgill’s bank accounts to Janelle,[10] Leanne[11] and people associated with them.[10] The second respondent.[11] The third respondent.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Pickersgill v Pickersgill & Ors [2019] QSC 268
PARTIES:	KEVIN JOSEPH PICKERSGILL (applicant) v MARGUERITE AMELIA PICKERSGILL BY HER LITIGATION GUARDIAN VICKI JACKSON (first respondent) and JANELLE HELLENORA FORREST (second respondent) and LEANNE AMELIA WINN (third respondent) and GRAHAM CHARLES PICKERSGILL (first respondent by counterclaim) and WILLIAM PICKERSGILL (second respondent by counterclaim) and MICHAEL THOMAS PICKERSGILL (third respondent by counterclaim)
FILE NO/S:	BS No 5159 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	5 November 2019
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2019
JUDGE:	Davis J
ORDER:	There be no order as to costs in favour of any party apart from the order of Mullins J made on 5 July 2019.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – FORM AND SETTLING OF COSTS ORDERS – where the original proceedings were resolved – where the parties made written submissions as to costs – where the proceeding was adversarial – whether there should be an order as to costs Powers of Attorney Act 1998 (Qld), s 115, s 116 CAC v Secretary, Department of Family and Community Services (No 2) [2015] NSWSC 344, cited
COUNSEL:	D R Cooper QC for the Applicant C Brewer for the First Respondent J Otto for the Second and Third Respondents No appearance for the Respondents by counterclaim
SOLICITORS:	Creevey Russell Lawyers for the Applicant South Geldard Solicitors for the First Respondent Grant & Simpson Lawyers for the Second and Third Respondents