Schuhmacher v Emmerson (No. 2)

[2013] QSC 235

SUPREME COURT OF QUEENSLAND

CITATION:	Schuhmacher v Emmerson & Ors (No. 2) [2013] QSC 235
PARTIES:	TREVOR JOHN SCHUHMACHER (applicant) v PAUL JAMES EMMERSON (AS EXECUTOR OF THE ESTATE OF ARTHUR HENRY PHILLIP SCHUHMACHER AND AS TRUSTEE OF THE ARTHUR SCHUHMACHER FAMILY DISCRETIONARY TRUST) (first respondent) and KAY NARELLE POWERS AND KAYRELLE JOHENNE POWERS (second respondents)
FILE NO:	BS 10167 of 2012
DIVISION:	Trial Division
PROCEEDING:	Originating application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	6 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Daubney J
ORDER:	1.   The applicant shall pay the first respondent’s and the second respondent’s standard costs of and incidental to the originating application filed 30 October 2012 and the application filed 31 January 2013.
CATCHWORDS:	PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where, in respect of the originating application, counsel for the applicant submitted that the applicant should bear its own costs and that the first respondent’s costs ought to be paid out of the estate – where there was an application to remove the first respondent as trustee of the trust – where there was a cross-application concerning the monies held in the Disputed Account – where the applicant opposed the relief sought in respect of the Disputed Account – where the applicant unsuccessfully opposed the cross-application – where the applicant’s conduct in pursuing then abandoning its argument about the purpose of the trust was not sufficiently egregious to justify the award of costs against it on the indemnity basis – whether costs should be awarded against the applicant on an indemnity basis.
COUNSEL:	ME Steele for the applicant DM Favell for the first respondent RT Whiteford for the second respondent
SOLICITORS:	Slater and Gordon for the applicant Richard Gray and Associates for the first respondent The Estate Lawyers for the second respondent

1. Consequent on my judgment in this proceeding,[1] the parties have now provided their submissions on costs.  This judgment on costs should be read in conjunction with my principal judgment in the proceeding.

   [1]Schuhmacher v Emmerson & Ors [2013] QSC 205.

1. In respect of the originating application, counsel for the applicant submitted that:

(a)the applicant should bear his own costs, and

(b)the first respondent’s costs ought be paid out of the estate.

1. It was submitted that it was appropriate for the application to be brought because of the concerns about the proper construction of clause 3(b) of the Deceased’s Will.  It was argued that the application by the applicant was necessary because the first respondent “did not take any steps to obtain directions, to transfer the shares, or otherwise to finalise the administration”.[2]  While accepting he was unsuccessful, the applicant nevertheless submitted that, until the appointment by the first respondent of himself as trustee of the Trust, the construction of the Will contended for by the applicant was consistent with that determined in the principal judgment.

   [2]Submissions, para 2.

1. In relation to the applicant’s application to…