Re Keane; Mace v Malone (No. 2)

[2011] QSC 98

SUPREME COURT OF QUEENSLAND

CITATION:

Re Keane;  Mace v Malone (No. 2) [2011] QSC 98

PARTIES:

JOSEPHINE ANGELA MACE
(applicant)
v
KIERAN MALONE
(respondent)

FILE NO:

13088 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

6 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Daubney J

ORDER:

The applicant will pay the respondent’s costs, including any reserved costs, of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where the application for a statutory will was dismissed – where the respondent seek costs to be paid out of the testator’s estate  - where the applicant submits costs should not follow the event.

Succession Act 1981 (Qld), ss 21, 22
Uniform Civil Procedure Rules 1999 (Qld), rule 681

Re Keane; Mace v Malone [2011] QSC 49, cited

COUNSEL:

R Peterson for the applicant
R Treston for the respondent

SOLICITORS:

McInnes Wilson Lawyers for the applicant
Gleeson Lawyers for the respondent

[1] On 25 March 2011, I dismissed this application for orders pursuant to ss 22 and 21 of the Succession Act 1981 (Qld).[1]  Submissions on costs have now been received from the parties. 

[1]Re Keane; Mace v Malone [2011] QSC 49.

[2]      The unsuccessful applicant submitted that this was a “unique type of case” in which costs should not follow the event.  It was submitted that the applicant had applied for a statutory will “with an honest belief that this would have been Patrick’s intention if he had capacity” and that the appropriate order in this case was for each party to bear its own costs.

[3]      The respondent sought costs, but additionally sought for their costs to be paid out of Patrick’s estate.  It was submitted that there are unusual features of this matter which would favour such an order including:

(a)         that the respondent, while representing their own interests, was also representing Patrick’s interests in seeking to uphold a will which he had made when he had capacity;

(b)         that the applicant has deposed to impecuniosity, and the court cannot be confident that she has an ability to meet a costs order;

(c)         that only one of the beneficiaries of Patrick’s estate was a respondent to the present proceeding, and an order that the respondent bear their own costs, or that the applicant pay the respondent’s costs, means that those beneficiaries who did not appear on the application will not bear any of the costs associated with upholding Patrick’s will.  It was submitted that there is “an element of injustice associated with such an order”.

[4]      Submissions on costs were also received from the Public Trustee of Queensland, on behalf of Patrick.  The Public Trustee had not appeared at the hearing of the application, because of an assurance given by the applicant that no adverse costs order would be sought against Patrick.  Having been notified, however, that the respondent now sought costs to be paid out of Patrick’s estate, the Public Trustee delivered submissions opposing such an order.  It was submitted by the Public Trustee that such an order would cause the burden of costs to fall on Patrick, even though the respondent’s contest of the application was motivated by their attempt to preserve their ultimate entitlement to Patrick’s estate.  The Public Trustee submitted:

“[Patrick] is a person under a disability.  He is in his advanced years in a nursing home in Toowoomba.  His inter vivos estate should not be further diminished so as to deprive him of any part of it for his personal use and well being simply because members of his family have sought to engage in litigation in which he has played no part.”

[5]      I accept the Public Trustee’s submissions in this regard.  In practical terms, the benefit of success in this piece of litigation was and is for the respondent, who has protected their ultimate entitlement to receive Patrick’s estate when he dies.  There was, and is, no benefit for Patrick in this litigation.  Moreover, I see no reason why the assets which are available to maintain Patrick in the nursing home should in any way be diminished by this spat between the competing camps in the family.

[6]      In my view, there is no reason to depart from the general rule as to costs.[2]

[2]Uniform Civil Procedure Rules 1999 (Qld), rule 681.

[7]      The applicant will pay the respondent’s costs, including any reserved costs, of and incidental to the application to be assessed on the standard basis.