Re Marshall (No 2)

[2020] QSC 130

SUPREME COURT OF QUEENSLAND

CITATION:

Re Marshall (No 2) [2020] QSC 130

PARTIES:

BRENDAN ROBERT ANDREW STEWART

(Applicant)

FILE NO/S:

SC 30 of 2020

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

22 May 2020

DELIVERED AT:

Cairns

HEARING DATE:

On the papers

JUDGE:

Henry J

ORDER:

The applicant’s costs of and incidental to the application be paid from the estate of the deceased on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – ISSUES AND COUNTERCLAIMS – FAILURE IN PORTION OF CASE – where the applicant brought an application for letters of administration with an informal will attached and consequential orders – where the court dismissed the dispensing application under s 18 Succession Act 1981 (Qld) – where the court nevertheless granted letters of administration on intestacy – whether the applicant is entitled to his costs on an indemnity basis paid out of the estate

Uniform Civil Procedure Rules 1999 (Qld), r 681

Re Buckton; Buckton vBuckton [1907] 2 Ch 406, applied
Alborn & Ors v Stephens & Ors[2010] QCA 58, applied

COUNSEL:

L Neil for the applicant

SOLICITORS:

Maurice Blackburn for the applicant

1. On 12 May 2020 I made orders granting the applicant letters of administration upon intestacy and dismissing the balance of his application before me.[1] The applicant had actually sought a grant of letters of administration with an alleged will as distinct from grant of letters of administration on intestacy. The substantial component of argument related to another aspect of the application which sought to satisfy the Court pursuant to s 18 Succession Act 1981 (Qld) (“the Act”) that a document signed by Ms Marshall some years before her death was intended to form her will. In the event that component of the application was successful, consequential orders were also sought relating to the proper construction of that alleged will. These components of the application were all unsuccessful. The applicant nonetheless seeks an order that the estate should pay the whole of his costs of the application on the indemnity basis.

   [1]Re Marshall [2020] QSC 109.

2. It is clear the applicant should have that part of his costs attributable to the component of the application by which letters of administration were sought.  Someone has to administer the estate, whether pursuant to a will or in intestacy, and an order had to be sought and made about that.  The real issue is whether the applicant should have the whole of his costs.

3. Rule 681 Uniform Civil Procedure Rules 1999 (Qld) provides that costs are in the discretion of the Court but follow the event unless the Court otherwise orders. It is well established that where a party has only been partly successful the Court may award that party’s costs in whole or in part, depending on the circumstances of the case. As to those circumstances, Muir JA relevantly observed in Alborn v Stephens:

   “The ‘event’ is not to be determined…