Shaw v Tane (No 2)

[2023] QSC 19

SUPREME COURT OF QUEENSLAND

CITATION:

Shaw v Tane (No 2) [2023] QSC 19

PARTIES:

MARIA BERNADINA SHAW

(Plaintiff)

v
TAMAR TANE

(Defendant)

FILE NO:

BS 11214 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application for costs

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 February 2023

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1.     The plaintiff pay the defendant’s costs of the proceeding.

2.     The defendant is entitled to be indemnified from the estate of Martin Joseph Tullemans (deceased) for her costs of the proceeding.

COUNSEL:

Hon. M Foley for the Plaintiff

C Brewer and J Pezet for the Defendant

SOLICITORS:

Connor Hunter for the Plaintiff
McInnes Wilson Lawyers for the Defendant

Jackson J:

1. On 23 December 2022 the Court made orders pronouncing against the validity of an alleged will of the late Martin Joseph Tullemans (“testator”) dated 18 October 2019 (“2019 will”) and a typed letter dated 18 October 2019 and pronouncing in favour of the force and validity of the last will and testament of the late Martin Joseph Tullemans dated 6 May 2013 (“2013 will”). Probate of that will was granted.[1]

   [1]Shaw v Tane [2022] QSC 301.

2. The defendant applies for an order that the plaintiff pay the defendant’s costs of the proceeding (being on the claim and counterclaim) to be assessed on the standard basis up to 28 July 2022 and to be assessed on the indemnity basis thereafter. 

3. The plaintiff applies for orders that both the defendant’s and her costs be paid from the testator’s estate.  Alternatively, the plaintiff submits that the Court should make no order as to costs, leaving the parties to bear their own costs.

4. The Court has a discretionary statutory power to order costs.[2]  That power is affected by the rules of court.[3] The rules provide that the costs of a proceeding are to follow the event unless the Court orders otherwise,[4] and that a party who sues or is sued as a trustee (which includes an executor) may be entitled to have costs of the proceeding that are not paid by someone else paid out of the fund held by the trustee.[5]  As well, in a proceeding relating to a will the Court may take into account the value of the property the subject of the proceeding, whether costs have been increased because non-compliance with the rules or a practice direction, or there is litigation of unmeritorious issues, or failure to make prompt or appropriate concessions or admissions or unwarranted attention is given to minor or peripheral issues.[6]  Unless the rules or an order of the Court provides otherwise costs are to be assessed on the standard basis.[7]  However, the Court may order costs to be assessed on the indemnity basis.[8]  One express basis to order indemnity costs in favour of a party is where the party sues or is sued as a trustee (including an executor).[9]  Where a party sues or is sued as a…