Sullivan v Greig (No 2) - [2023] QSC 119

SUPREME COURT OF QUEENSLAND

CITATION: Sullivan v Greig (No 2) [2023] QSC 119

PARTIES:
LINDA ROSE SULLIVAN

(applicant)
v
VALERIE GREIG
(respondent)

FILENO/S: BS No 14749 of 2021

DIVISION: Trial Division

PROCEEDING: Trial

ORIGINATINGCOURT: Supreme Court at Brisbane

DELIVEREDON: 5 June 2023

DELIVEREDAT: Brisbane

HEARINGDATE: Heard on the papers

JUDGE: Williams J

ORDER:
THE COURT ORDERS THAT:

Save as ordered by Justice Bradley on 1 November 2022, the applicant pay the respondent’s costs of the proceeding:

(a) on the standard basis from 10 December 2021 until 22 July 2022; and

(b) on the indemnity basis after 22 July 2022.

CATCHWORDS:
SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – COSTS – GENERAL PRINCIPLES –

where the respondent was wholly successful at trial – whether the ordinary cost rules apply as opposed to any exception that may apply in the probate context

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENT INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK OFFERS – GENERALLY – where the

respondent was wholly successful at trial – where the respondent made two Calderbank offers which were rejected by the plaintiff – whether the refusal of the first Calderbank offer was unreasonable – whether costs should be paid on a standard or indemnity basis

Uniform Civil Procedure Rules 1999 (Qld), r 681, r 700A

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Fielder v Burgess [2014] SASC 98

LPD Holdings (Aust) Pty Ltd & Anor v Phillips, Hickey and Toigo & Ors [2013] QCA 305

Outram v Public Trustee of Queensland [2020] QSC 159
Roche v Roche & Another (No 2) [2017] SASC 75

S.H.A Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) [2020] QSC 323

COUNSEL: Submissions prepared by the applicant in person Submissions prepared by R T Whiteford for the respondent

SOLICITORS:

The applicant in person

Shine Lawyers for the respondent

On 10 May 2023 the following orders were made: “THE COURT ORDERS THAT:
1.The Court pronounces for the full force and validity of the Will of the deceased dated 15 November 2021.
2.Subject to the formal requirements of the Registrar, Letters of Administration of the deceased’s estate with the Will dated 15 November 2021 be granted to the respondent.
FURTHER, THE COURT DIRECTS THAT:
1.The parties file written submissions of no more than 3 pages in respect of costs within 7 days of today.”

Both the applicant and the respondent have filed written submissions as to costs and each party has also filed and served an affidavit.

These reasons use the defined terms from the reasons for judgment,¹ unless identified to the contrary.

The respondent was wholly successful at the trial. Whilst there was a sufficient basis to require the respondent to prove the Will in solemn form, the respondent proved on the balance of probabilities that the document purporting to be the Will was signed by the deceased having testamentary capacity.

In order to determine the appropriate costs order in…

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 Sullivan v Greig (No 2)

Details

AGLC: Sullivan v Greig (No 2) [2023] QSC 119
Case: [2023] QSC 119
Decision Date: 5 June 2023

CaseChat Overview and Summary

In the matter of Sullivan v Greig, the respondent was wholly successful at trial. The dispute arose from a claim related to succession, probate, and letters of administration. The matter was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the ordinary cost rules should apply to the respondent's successful case, or if an exception might apply specifically within the context of probate matters. A secondary issue was whether the refusal of the respondent's Calderbank offer by the applicant was unreasonable, potentially impacting the basis on which costs should be awarded.

The court examined the ordinary cost rules and considered if there was any exception that might apply to the unique context of probate cases. It was determined that no such exception applied, and the ordinary rules governing costs in successful cases should be followed. The court also considered the applicant's refusal of two Calderbank offers made by the respondent. The court found that the refusal of the first Calderbank offer was unreasonable, which influenced the court's decision on the basis on which costs should be awarded.

The court ruled that the applicant should pay the respondent's costs on the standard basis from 10 December 2021 until 22 July 2022, and on the indemnity basis after 22 July 2022. This decision reflected the unreasonable refusal of the Calderbank offer and the need to deter similar conduct in future cases. The court's ruling also highlighted the importance of considering the nature of the dispute and the procedural steps taken by the parties in determining the appropriate basis for awarding costs.

Orders

Orders of the court

THE COURT ORDERS THAT:

Save as ordered by Justice Bradley on 1 November 2022, the applicant pay the respondent’s costs of the proceeding:

(a) on the standard basis from 10 December 2021 until 22 July 2022; and

(b) on the indemnity basis after 22 July 2022.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Sullivan v Greig (No 2) [2023] QSC 119
PARTIES:	LINDA ROSE SULLIVAN (applicant) v VALERIE GREIG (respondent)
FILENO/S:	BS No 14749 of 2021
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATINGCOURT:	Supreme Court at Brisbane
DELIVEREDON:	5 June 2023
DELIVEREDAT:	Brisbane
HEARINGDATE:	Heard on the papers
JUDGE:	Williams J
ORDER:	THE COURT ORDERS THAT: Save as ordered by Justice Bradley on 1 November 2022, the applicant pay the respondent’s costs of the proceeding: (a) on the standard basis from 10 December 2021 until 22 July 2022; and (b) on the indemnity basis after 22 July 2022.
CATCHWORDS:	SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – COSTS – GENERAL PRINCIPLES – where the respondent was wholly successful at trial – whether the ordinary cost rules apply as opposed to any exception that may apply in the probate context PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENT INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK OFFERS – GENERALLY – where the respondent was wholly successful at trial – where the respondent made two Calderbank offers which were rejected by the plaintiff – whether the refusal of the first Calderbank offer was unreasonable – whether costs should be paid on a standard or indemnity basis Uniform Civil Procedure Rules 1999 (Qld), r 681, r 700A Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225