Radford v White (No 2) - [2020] QSC 369

SUPREME COURT OF QUEENSLAND

CITATION:

Radford v White (No 2) [2020] QSC 369

PARTIES:

KATRINA PAULINE RADFORD

(applicant)

v
NICOLE WHITE

(respondent)

FILE NO:

SC No 3602 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application for costs

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Jackson J

ORDER:

If a personal representative of the estate of Jay Matthew Schwer is appointed, it is ordered that the applicant’s costs and the respondent’s costs of the application both assessed on the standard basis be paid from the estate.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – OTHER CASES – where the applicant succeeded on the issue that was in dispute on the application – where following the primary decision, both parties applied for orders for costs – where the respondent submits that the applicant or the applicant’s solicitor should be ordered to pay the respondent’s costs to be assessed on the indemnity basis – where alternatively, the respondent submits that the applicant pay the respondent’s costs of the proceeding and the applicant be entitled to seek an indemnity for those costs and her own costs from the estate – where the applicant submits that the respondent or the respondent’s solicitor should pay the applicant’s costs of the proceeding to be assessed on the indemnity basis – whether the respondent should be ordered to pay the applicant’s costs of the proceeding based on the outcome that the applicant succeeded on the question in dispute on the application

Succession Act 1981 (Qld), s 5, s 18
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 18, r 31, r 597, r 598, r 599, r 603, r 681, r 700, r 700A
Radford v White [2018] QSC 306, related
Re Mangan [2016] VSC 480, discussed
Rowe v Storer (No 2) [2013] VSC 635, cited

COUNSEL:

D Stevenson for the applicant

S McLeod for the respondent

SOLICITORS:

Wockner Lawyers for the applicant

Michelle Porcheron Lawyers for the respondent

JACKSON J: This is an application for costs. By the primary decision, I declared that a video recording formed the will of Jay Matthew Schwer (“deceased”) within the meaning of s 18(2) of the Succession Act 1981 (Qld).[1] Following that order, both parties applied for orders for costs by written submissions.
[1]Radford v White [2018] QSC 306.
By the primary decision, the applicant succeeded on the issue that was disputed. However, the respondent submits that the applicant or the applicant’s solicitor should be ordered to pay the respondent’s costs to be assessed on the indemnity basis. The respondent provided lengthy written submissions on costs, raising numerous reasons why those orders should be made.
First, the respondent submits the application should have been brought by the applicant in a representative capacity, but was not. Rule 18 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) requires that a person suing in a…

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 Radford v White (No 2)

Details

AGLC: Radford v White (No 2) [2020] QSC 369
Case: [2020] QSC 369
Decision Date: 11 December 2020

CaseChat Overview and Summary

In Radford v White, the court was asked to decide issues relating to the validity of a will. The applicant, Radford, sought to have a document recognised as the deceased's will, while the respondent, White, contested its validity. The case reached the court on an application where the primary issue was whether the document in question was intended to be a will and whether it was validly executed. The court was required to decide if the document met the legal requirements for an informal will under the relevant legislation.

The court considered the nature of the document, its content, and the circumstances surrounding its creation and execution. It examined whether the document demonstrated the deceased's intention to create a will and whether it was executed in accordance with the legal requirements. The court also assessed the credibility of the evidence provided by both parties and the weight of the arguments presented. After careful consideration, the court found that the document was indeed intended to be a will and was validly executed.

The court determined that the applicant, Radford, was entitled to succeed on the question in dispute. As a result, the court ordered that the costs of the application be paid from the estate of Jay Matthew Schwer, if a personal representative is appointed. Both parties applied for orders regarding costs, with the respondent seeking indemnity costs and the applicant seeking costs on the standard basis. The court ordered that both parties' costs of the application be assessed on the standard basis and paid from the estate.

Orders

Orders of the court

If a personal representative of the estate of Jay Matthew Schwer is appointed, it is ordered that the applicant’s costs and the respondent’s costs of the application both assessed on the standard basis be paid from the estate.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Radford v White (No 2) [2020] QSC 369
PARTIES:	KATRINA PAULINE RADFORD (applicant) v NICOLE WHITE (respondent)
FILE NO:	SC No 3602 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application for costs
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	11 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions
JUDGE:	Jackson J
ORDER:	If a personal representative of the estate of Jay Matthew Schwer is appointed, it is ordered that the applicant’s costs and the respondent’s costs of the application both assessed on the standard basis be paid from the estate.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – OTHER CASES – where the applicant succeeded on the issue that was in dispute on the application – where following the primary decision, both parties applied for orders for costs – where the respondent submits that the applicant or the applicant’s solicitor should be ordered to pay the respondent’s costs to be assessed on the indemnity basis – where alternatively, the respondent submits that the applicant pay the respondent’s costs of the proceeding and the applicant be entitled to seek an indemnity for those costs and her own costs from the estate – where the applicant submits that the respondent or the respondent’s solicitor should pay the applicant’s costs of the proceeding to be assessed on the indemnity basis – whether the respondent should be ordered to pay the applicant’s costs of the proceeding based on the outcome that the applicant succeeded on the question in dispute on the application Succession Act 1981 (Qld), s 5, s 18 Uniform Civil Procedure Rules 1999 (Qld), r 5, r 18, r 31, r 597, r 598, r 599, r 603, r 681, r 700, r 700A Radford v White [2018] QSC 306, related Re Mangan [2016] VSC 480, discussed Rowe v Storer (No 2) [2013] VSC 635, cited
COUNSEL:	D Stevenson for the applicant S McLeod for the respondent
SOLICITORS:	Wockner Lawyers for the applicant Michelle Porcheron Lawyers for the respondent