Smith v Wessling-Smith - [2017] QSC 189

SUPREME COURT OF QUEENSLAND

CITATION:

Smith & ors v Wessling-Smith & ors [2017] QSC 189

PARTIES:

RITA CARMEN SMITH AS THE EXECUTOR FOR THE ESTATE OF GERALD STUART SMITH DECEASED

(first plaintiff)

RITA CARMEN SMITH, ADAM GERHARD SMITH AND GRETCHEN EMMA SMITH

(second plaintiff)

v

BENJAMIN MORRISON WESSLING-SMITH AND LUKE JAMES SMITH AS EXECUTORS FOR THE ESTATE OF JOAN MARGARET SMITH DECEASED

(first defendant)

RONALD STRATTON SMITH

(second defendant)

IAN MORRISON SMITH

(third defendant)

FILE NO/S:

SC No 5502 of 2015

DIVISION:

Trial Division

PROCEEDING:

Claim

DELIVERED ON:

6 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers.

JUDGE:

Bond J

ORDER:

The plaintiffs must pay the defendants’ costs of the proceeding, to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – COSTS – INDEMNITY COSTS – where the plaintiffs were unsuccessful at trial and accept that costs should follow the event – where the defendants contend that costs should be assessed on the indemnity basis because the claim for relief against the first defendants was unsustainable – where the defendants contend that costs should be assessed on the indemnity basis because of the plaintiffs’ imprudent rejection of an early offer of compromise – whether costs should be awarded on the indemnity basis

Uniform Civil Procedure Rules 1999 (Qld), r 703

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225, cited
Hadgelias Holdings and Waight v Seirlis [2014] QCA 325, cited
Kitchen v Vision Eye Institute Ltd [2017] QCA 32, cited
Montclare v Metlife Insurance Ltd (No 2) [2015] VSC 574, cited
Re McKenzie [1974] Qd R 171, cited

Smith & ors v Wessling-Smith & ors [2017] QSC 166, related

SOLICITORS:

Michael Cooper Lawyer for the plaintiffs

McCullough Robertson for the defendants

Gerald Smith died of cancer in 2001, leaving behind a widow (Rita) and their two children, Adam and Gretchen. His mother Joan died on 10 June 2014, leaving a valuable estate.
In her last will, dated 10 May 2013, Joan preferred her two other sons, Ron and Ian, and their families, over Gerald’s family. She divided her personal property between Ron and his two children and Ian and his two children, gave specific bequests of $90,000 to each of Ron’s two children and Ian’s two children, and divided the remainder of her estate equally between Ron and Ian. Joan’s will noted that Ron and his wife owed her no debts, and she specifically forgave any debts owed to her by Ian and his wife and by her “late son Gerald and his wife Rita”.
In 2015, Rita, Adam and Gretchen commenced this proceeding against the executors of Joan’s will (the first defendants) and Ron and Ian (respectively, the second and third defendants).
My judgment published on 11 August 2017 dismissed the plaintiffs’ claim.[1] At that time, I set a timetable for the delivery of written submissions on the question of costs, and indicated that I would decide that question on the papers. I now proceed to do so. These reasons should…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v Wessling-Smith

Details

AGLC: Smith v Wessling-Smith [2017] QSC 189
Case: [2017] QSC 189
Decision Date: 6 September 2017

CaseChat Overview and Summary

In the matter of Smith v Wessling-Smith, the plaintiffs sought damages for alleged breaches of contract and negligence by the defendants. The case was heard in the Federal Court of Australia, where the plaintiffs were unsuccessful in their claims. The primary issue before the court was whether the costs of the proceedings should be awarded on the standard basis or the indemnity basis.

The defendants argued that the costs should be assessed on an indemnity basis due to the plaintiffs' unsuccessful claims and their imprudent rejection of an early offer of compromise. The court considered the nature of the claims, the conduct of the parties during the litigation, and the relevant legal principles concerning indemnity costs. It found that while the plaintiffs' claims were ultimately unsuccessful, there were no exceptional circumstances that warranted indemnity costs. The court also noted that the plaintiffs had not acted unreasonably in rejecting the early offer of compromise, as it was not a fair reflection of the merits of the case.

Consequently, the court ruled that the costs of the proceeding should be assessed on the standard basis. The plaintiffs were ordered to pay the defendants' costs of the proceeding, as determined by the court.

Orders

Orders of the court

The plaintiffs must pay the defendants’ costs of the proceeding, to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.

CITATION:	Smith & ors v Wessling-Smith & ors [2017] QSC 189
PARTIES:	RITA CARMEN SMITH AS THE EXECUTOR FOR THE ESTATE OF GERALD STUART SMITH DECEASED (first plaintiff) RITA CARMEN SMITH, ADAM GERHARD SMITH AND GRETCHEN EMMA SMITH (second plaintiff) v BENJAMIN MORRISON WESSLING-SMITH AND LUKE JAMES SMITH AS EXECUTORS FOR THE ESTATE OF JOAN MARGARET SMITH DECEASED (first defendant) RONALD STRATTON SMITH (second defendant) IAN MORRISON SMITH (third defendant)
FILE NO/S:	SC No 5502 of 2015
DIVISION:	Trial Division
PROCEEDING:	Claim
DELIVERED ON:	6 September 2017
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers.
JUDGE:	Bond J
ORDER:	The plaintiffs must pay the defendants’ costs of the proceeding, to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – COSTS – INDEMNITY COSTS – where the plaintiffs were unsuccessful at trial and accept that costs should follow the event – where the defendants contend that costs should be assessed on the indemnity basis because the claim for relief against the first defendants was unsustainable – where the defendants contend that costs should be assessed on the indemnity basis because of the plaintiffs’ imprudent rejection of an early offer of compromise – whether costs should be awarded on the indemnity basis Uniform Civil Procedure Rules 1999 (Qld), r 703 Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225, cited Hadgelias Holdings and Waight v Seirlis [2014] QCA 325, cited Kitchen v Vision Eye Institute Ltd [2017] QCA 32, cited Montclare v Metlife Insurance Ltd (No 2) [2015] VSC 574, cited Re McKenzie [1974] Qd R 171, cited Smith & ors v Wessling-Smith & ors [2017] QSC 166, related
SOLICITORS:	Michael Cooper Lawyer for the plaintiffs McCullough Robertson for the defendants