Public Trustee of Queensland v. McKenzie

In the case of Public Trustee of Queensland v. McKenzie, the dispute arose when the Public Trustee of Queensland applied to administer the estate of the respondent’s deceased brother. The respondent, McKenzie, lodged a caveat against the application. The testator, who had an intellectual disability and lived in isolated circumstances, had left a will that the Public Trustee sought to administer. McKenzie contested the Public Trustee's right to administer the estate, and the Public Trustee contested McKenzie's standing to file a caveat. McKenzie offered to withdraw the caveat, relinquish any claim on the estate, and consent to the will being proved in solemn form on the condition that both parties bear their own costs. The Public Trustee did not respond to this offer. The court was required to determine the appropriate costs orders in light of the circumstances.

The court considered the offer made by McKenzie and the Public Trustee’s failure to respond to it. The court noted that McKenzie's offer was a reasonable one and took into account the fact that the Public Trustee did not respond to it. The court held that the offer was not accepted because the Public Trustee did not respond to it. The court found that McKenzie's conduct in lodging the caveat was not reasonable, and therefore, the costs incurred by the Public Trustee were recoverable. The court also considered the general rule that costs should follow the event but departed from this rule due to the specific circumstances of the case.

The court ordered that the orders of Justice Douglas dated 24 May 2007 be set aside, and the originating application be dismissed. The court further ordered that McKenzie pay the Public Trustee’s costs of and incidental to the proceeding commenced by the originating application. These costs were to be assessed on the standard basis up to 28 June 2007, with no order as to costs thereafter. The assessment of the costs was to be undertaken by Ryan Cost Consultant Pty Ltd. This decision highlights the importance of responding to reasonable offers in proceedings and the potential consequences of failing to do so.