Re McGilchrist (dec'd) (No 2)

Case [2025] QSC 122

SUPREME COURT OF QUEENSLAND

CITATION:

Re McGilchrist (dec’d) (No 2) [2025] QSC 122

PARTIES:

PAUL McGILCHRIST AND DREW McGILCHRIST AS EXECUTORS OF JOYCE McGILCHRIST, DECEASED

(applicants)

v
KIM WHEELER

(first respondent)
AND
RUTH EVOLUTE
(second respondent)
AND
BRETT McGILCHRIST
(third respondent)

FILE NO:

BS 14352 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 May 2025

DELIVERED AT:

Brisbane

HEARING DATE:

Decided on written submissions pursuant to the order made on 17 December 2024

JUDGE:

Davis J

ORDER:

1.    The applicants’ costs be paid from the estate on an indemnity basis.

2.    There be no other order as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – FORM AND SETTLING OF COSTS ORDERS – where the testator made a will leaving parcels of land to her sons – where parts of the parcels of land were resumed – where as a result of the resumptions the real property descriptions of the parcels of land bequeathed by the testator were different to those which appeared in the will – where there was a typographical error in the description of a parcel of land – where the applicants brought an application for rectification and other declaratory relief regarding the parcels of land’s descriptions in the will – where the first respondent contended that no change in descriptions would result in the parcels of land falling to residue – where it was ordered that the parcels of land would pass pursuant to the testator’s ascertained testamentary intentions to the sons – where the applicants are entitled to have their costs paid out of the estate – whether the first respondent should pay the applicants’ costs – whether the first respondent should have her costs paid out of the estate

Uniform Civil Procedure Rules 1999 (Qld), r 700


Re McGilchrist (dec’d)[2024] QSC 322, related

COUNSEL:

Written submissions on behalf of the applicants prepared by
J I Otto KC
Written submissions on behalf of the first respondent prepared by G J Barr

No appearance for the other respondents

SOLICITORS:

McCullough Robertson Lawyers for the applicants
Thompson Legal for the first respondent
No appearance for the other respondents

  1. This is the determination of the question of costs as the result of orders made in Re McGilchrist (dec’d)[1] (the principal application).

    Background

  2. The applicants are the executors of the deceased estate of Joyce McGilchrist.

  3. The applicants sought rectification of the will and declarations as to its meaning.

  4. Rectification was sought because there was a typographical error in the will describing one of the parcels of land as “Lot 3 on SP 185563”, when the proper description was “Lot 3 on SP 158563”.

  5. The will described two lots of land,[2] being Lot 3 on SP 158563[3] and Lot 8 on SP 147516.  The land, by those descriptions, was left to particular beneficiaries.  Prior to the death of the testator, small parts of those two lots were resumed and new titles issued so that there was no longer land described as “Lot 3 on SP158563” and “Lot 8 on SP 147516”.  The first respondent took the position that as there was now no land described as “Lot 3 on SP 158563” and no land described as “Lot 8 on SP 147516”, the gift of the land that remained after the resumption failed and, therefore, those parcels of land fell to residue.  The three respondents, with others, shared in that residue by the terms of the will.  Only the first respondent took such a position.

    [2]While three lots of land were bequeathed only two were contentious.

    [3]Misdescribed as “Lot 3 on SP 185563”.

  6. The first respondent persisted with that argument at the hearing of the principal application.  The other respondents did not adopt that position and did not appear at the hearing.

  7. On 17 December 2024, the following orders were made:

    1.It is declared that Lot 3 on SP 309011 passes to Drew McGilchrist pursuant to the terms of clause 3(a) of the will.

2.It is declared that Lot 8 on SP 309010 passes to Paul McGilchrist and Drew McGilchrist pursuant to clause 3(b) of the will.

3.The parties shall file and exchange written submissions on costs by 4 pm on 24 January 2025.

4.Each party shall have leave to file and serve an application for leave to make oral submissions on costs by 4 pm on 7 February 2025.

5.Unless an application to make oral submissions on costs is filed, the question of costs will be decided on any written submissions filed and without further oral hearing.

  1. It was not necessary to order rectification, but the will is to be read as if the land referred to was Lot 3 on SP 158563.[4]

    [4]Re McGilchrist (dec’d) [2024] QSC 322 at [20]-[26].

    Submissions of the parties on costs

  2. By r 700 of the Uniform Civil Procedure Rules 1999, unless the Court otherwise orders, the executors (here, the applicants) should have their costs paid out of the estate on an indemnity basis.  No reason is put forward by the first respondent that the applicants ought to be denied that order, and I shall make it.

  3. The applicants then seek an order that the first respondent pay their costs of the proceeding on the standard basis.  The practical effect of that is that the estate would only bear the difference between the applicants’ costs paid on an indemnity basis and the costs recovered on the standard basis from the first respondent.

  4. The first respondent seeks an order that her costs be paid from the estate on an indemnity basis. Subject to circumstances which might deny her payment of her costs from the estate on an indemnity basis, that should be the order.

  5. Alternatively, she says that there should be no order as to costs save that the estate pay the applicants’ costs on an indemnity basis.  She resists an order against her.

    Consideration

  6. The first respondent has an interest in the estate and, therefore, has an interest in seeing that the will is properly construed. 

  7. The position of the first respondent adopted during the principal application was simply untenable and, in my view, obviously so.  The land which was intended to be specifically gifted was clearly identifiable.  The suggestion that the gift of the land should fail because a small part of the two lots had been resumed was baseless. 

  8. The position taken by the first respondent was not a reasonable one and the first respondent should not have her costs paid from the estate.

  9. However, through no fault of the first respondent, the applicants were faced with a will that bore a typographical error and where the land which was gifted to specified beneficiaries bore a different description to that as appeared in the will.  In those circumstances, prudent executors would be justified in seeking the directions of the Court, even where the true and proper intention of the testator was clear.

  10. It might be that if the applicants had obtained the agreement and consent of all beneficiaries (including the first respondent) as to the proper construction of the will, the application might have been avoided.  However, it is unwise to speculate as to what might have been.  The fact is that there is a real prospect that the applicants may have thought it necessary to bring the application regardless of the first respondent’s position.    

    Orders

  11. In all the circumstances, it is appropriate for the estate to bear the costs of the application but not the costs of the first respondent, and so the appropriate orders are as follows:

    1.The applicants’ costs be paid from the estate on an indemnity basis.

    2.There be no other order as to costs.


Details
AGLC
Re McGilchrist (dec'd) (No 2) [2025] QSC 122
Case
[2025] QSC 122
Decision Date

CaseChat Overview and Summary

The case of Re McGilchrist (dec'd) (No 2) concerns the issue of costs arising from a previous application related to the rectification and interpretation of the will of the deceased, Joyce McGilchrist. The applicants, who are the executors of the estate, sought rectification and declaratory relief regarding the descriptions of parcels of land bequeathed by the will. The first respondent contested the application, arguing that the parcels of land in question should fall to residue due to the land descriptions differing from those in the will because of resumptions and a typographical error. The primary application resulted in orders that the parcels of land would pass according to the testator's intentions, and the applicants were entitled to have their costs paid out of the estate. The central legal issues were whether the first respondent should pay the applicants' costs and whether her own costs should be paid from the estate.

The court examined the position of the first respondent, who had an interest in the estate but whose stance during the principal application was deemed untenable. The court held that the first respondent's argument that the gifts of land should fail due to the resumptions was baseless, and her position was not reasonable. Consequently, the court ruled that the first respondent should not have her costs paid from the estate. However, the applicants faced a will with a typographical error and land descriptions differing from those in the will, which justified seeking court direction. While it might have been preferable for the applicants to secure the consent of all beneficiaries, the court found it prudent to allow the application given the circumstances. The court concluded that the estate should bear the costs of the application but not the costs of the first respondent.

In conclusion, the court ordered that the applicants' costs be paid from the estate on an indemnity basis. The court further ruled that there should be no order as to the costs of the first respondent. The rationale was that while the first respondent's position was not reasonable and should not be compensated from the estate, the estate should still bear the costs of the application due to the typographical error and the differing land descriptions in the will. The first respondent's costs were not to be paid from the estate, reflecting the court's view that her position was not reasonable.

Orders

Orders of the court

1. The applicants’ costs be paid from the estate on an indemnity basis.

2. There be no other order as to costs.

Background

Background to the litigation

This is the determination of the question of costs as the result of orders made in Re McGilchrist (dec’d)[1] (the principal application). [1][2024] QSC 322.Background The applicants are the executors of the deceased estate of Joyce McGilchrist. The applicants sought rectification of the will and declarations as to its meaning. Rectification was sought because there was a typographical error in the will describing one of the parcels of land as “Lot 3 on SP 185563”, when the proper description was “Lot 3 on SP 158563”. The will described two lots of land,[2] being Lot 3 on SP 158563[3] and Lot 8 on SP 147516. The land, by those descriptions, was left to particular beneficiaries. Prior to the death of the testator, small parts of those two lots were resumed and new titles issued so that there was no longer land described as “Lot 3 on SP158563” and “Lot 8 on SP 147516”. The first respondent took the position that as there was now no land described as “Lot 3 on SP 158563” and no land described as “Lot 8 on SP 147516”, the gift of the land that remained after the resumption failed and, therefore, those parcels of land fell to residue. The three respondents, with others, shared in that residue by the terms of the will. Only the first respondent took such a position.[2]While three lots of land were bequeathed only two were contentious.[3]Misdescribed as “Lot 3 on SP 185563”. The first respondent persisted with that argument at the hearing of the principal application. The other respondents did not adopt that position and did not appear at the hearing. On 17 December 2024, the following orders were made:1.It is declared that Lot 3 on SP 309011 passes to Drew McGilchrist pursuant to the terms of clause 3(a) of the will. It was not necessary to order rectification, but the will is to be read as if the land referred to was Lot 3 on SP 158563.[4] [4]Re McGilchrist (dec’d) [2024] QSC 322 at [20]-[26].Submissions of the parties on costs By r 700 of the Uniform Civil Procedure Rules 1999, unless the Court otherwise orders, the executors (here, the applicants) should have their costs paid out of the estate on an indemnity basis. No reason is put forward by the first respondent that the applicants ought to be denied that order, and I shall make it. The applicants then seek an order that the first respondent pay their costs of the proceeding on the standard basis. The practical effect of that is that the estate would only bear the difference between the applicants’ costs paid on an indemnity basis and the costs recovered on the standard basis from the first respondent. The first respondent seeks an order that her costs be paid from the estate on an indemnity basis. Subject to circumstances which might deny her payment of her costs from the estate on an indemnity basis, that should be the order. Alternatively, she says that there should be no order as to costs save that the estate pay the applicants’ costs on an indemnity basis. She resists an order against her.Consideration

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

Alternatively, she says that there should be no order as to costs save that the estate pay the applicants’ costs on an indemnity basis. She resists an order against her.Consideration The first respondent has an interest in the estate and, therefore, has an interest in seeing that the will is properly construed. The position of the first respondent adopted during the principal application was simply untenable and, in my view, obviously so. The land which was intended to be specifically gifted was clearly identifiable. The suggestion that the gift of the land should fail because a small part of the two lots had been resumed was baseless. The position taken by the first respondent was not a reasonable one and the first respondent should not have her costs paid from the estate. However, through no fault of the first respondent, the applicants were faced with a will that bore a typographical error and where the land which was gifted to specified beneficiaries bore a different description to that as appeared in the will. In those circumstances, prudent executors would be justified in seeking the directions of the Court, even where the true and proper intention of the testator was clear. It might be that if the applicants had obtained the agreement and consent of all beneficiaries (including the first respondent) as to the proper construction of the will, the application might have been avoided. However, it is unwise to speculate as to what might have been. The fact is that there is a real prospect that the applicants may have thought it necessary to bring the application regardless of the first respondent’s position. Orders In all the circumstances, it is appropriate for the estate to bear the costs of the application but not the costs of the first respondent, and so the appropriate orders are as follows:1.The applicants’ costs be paid from the estate on an indemnity basis.2.There be no other order as to costs.