Ross Leslie Palmer v Ryan Andrew Palmer as trustee of the Ross Leslie Palmer Testamentary Trust

[2023] QCA 165

[2023] QCA 165

COURT OF APPEAL

MORRISON JA
DALTON JA
NORTH J

Appeal No 91 of 2023
SC No 10625 of 2020

ROSS LESLIE PALMER  Appellant

v

RYAN ANDREW PALMER AS TRUSTEE OF THE  Respondent
ROSS LESLIE PALMER TESTAMENTARY TRUST

IAN LINDSAY PALMER  Interested Party

BRISBANE

MONDAY, 21 AUGUST 2023

JUDGMENT

DALTON JA:  The events relevant to this appeal concern disputes arising out of a will or out of the administration of will trusts.  The testator, Leslie Palmer, died in 2009.  He left his estate on three testamentary trusts, one for each of his three children, Ross, Ian and Nola.  The estate is still not administered.  There are complicated claims in relation to the executors’ management of it and there are wider complex claims amongst members of the Palmer family.  Ryan Palmer is the son of Ross Leslie Palmer, the appellant.  Ryan is the trustee of the Ross Leslie Palmer testamentary trust.

This appeal is from a decision of a primary Judge giving advice pursuant to s 96 of the Trusts Act 1973.  The advice was to the effect that Ryan Palmer is justified in entering into a settlement deed, the form of which has been agreed upon after a mediation which took place over several months in 2021 and 2022.  At the mediation, Ian and Ryan reached a settlement of disputes between the two of them.  Mr Ross Palmer did not join in that settlement and did not reach a settlement of any disputes with anyone else.

Ross Palmer acted for himself before the primary Judge, and he has instituted this appeal without legal representation.  He failed to lodge a written outline of argument, and by his own request he appeared today by video link with a McKenzie friend.  The notice of appeal does not identify any error of fact or law said to be made by the primary Judge.  What it does instead is ask this Court for several orders which are all akin to relief which might be sought on another application or in a separate proceeding altogether.  In short, it is fundamentally misconceived.  This was pointed out to Ross Palmer in correspondence which was sent by solicitors acting for both Ryan Palmer and Ian Palmer, who are the respondents to this appeal.

The primary Judge acted in an orthodox way in exercising her discretion below.  The judgment does not contain anything which might give rise to questions or concerns on the part of this Court.  To the contrary, it seems a sensible exercise of discretion.  In those circumstances, this appeal must be dismissed with costs.  We will hear the parties now as to whether those costs should be assessed on a standard or indemnity basis.

NORTH J:  I agree with the orders proposed by Justice Dalton and her Honour’s reasons for those orders.

MORRISON JA:  I too agree.

…

DALTON JA:  The order of the Court will be that the costs of the appeal so far as Ryan Palmer is concerned are to be assessed on a standard basis, to be assessed or agreed.  So far as Ian Palmer is concerned, the costs will be on an indemnity basis.  The reasons for that is Ian Palmer was not properly a party to this appeal but was in the invidious position of not being able to ignore it because the relief sought against him (albeit wrongheaded) meant that he did have a continuing interest in responding to the appeal.  The second reason for the indemnity costs order is that it was pointed out to Mr Ross Palmer several times in solicitor’s letters that his appeal was misconceived in the very way this Court has found it to be misconceived.  Notwithstanding that, and notwithstanding offers to let him withdraw it, he continued to persist with it.

MORRISON JA:  I agree.

NORTH J:  I agree.

MORRISON JA:  The orders of the Court are as Justice Dalton pronounced them.  Thank you, everyone.  Adjourn the Court.