Temple v Temple (No 2)

[2023] QDC 172

DISTRICT COURT OF QUEENSLAND

CITATION:

Temple v Temple (No 2) [2023] QDC 172

PARTIES:

MARK TRACEY TEMPLE

(Applicant)
v

CARL DAVID TEMPLE AS EXECUTOR OF THE WILL OF KENNETH GRAHAM TEMPLE (DECEASED)

(Respondent)

FILENO:

4650/19

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVEREDON:

29 September 2023

DELIVEREDAT:

District Court at Brisbane

HEARINGDATE:

Heard on the papers

JUDGE:

Loury KC DCJ

ORDERS:

1.   The applicant is to pay the respondent’s costs on the indemnity basis on and from 3 June 2023;

2.   The respondent’s costs are otherwise to be paid out of the estate on the indemnity basis.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – COSTS – Where

the application was dismissed – where the applicant rejected a Calderbank offer – whether the applicant’s conduct should result in bearing the burden of costs

LEGISLATION:

Succession Act 1981, s 41

CASES:

Calderbank v Calderbank [1976] Fam 93

J & D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23
Kozak v Matthews & Anor [2007] QSC 204
Manly v The Public Trustee of Queensland (No. 2) [2008] QSC 47

Outram v Public Trustee of Queensland [2020] QSC 159

Singer v Berghouse (1994) 181 CLR 201
Wagner v Nine Network Australia (No 2) [2019] QSC 309

COUNSEL:

T Naylor for the applicant A Fraser for the respondent

SOLICITORS:

Mobbs Marr for the applicant

The Estate Lawyers for the respondent

Introduction

1. The applicant sought orders under Part 4 of the Succession Act 1981 for further provision for himself from the estate of his father, Kenneth Graham Temple. The trial proceeded before me on 24 and 25 July 2023, and on 21 August 2023, I made an order dismissing the application.¹ The question of costs was adjourned for later consideration and each party has provided written submissions in this regard.

The orders the parties seek

1. The applicant submits that the appropriate costs orders are that each party bears their own costs, with the respondent being entitled to an indemnity for his costs from the estate. Alternatively, the applicant submits that, should the court seek to order the applicant pay some of the respondent’s costs, the appropriate order is:

(a)      No order as to costs up to 24 August 2021; and

(b)      The applicant pay the respondent’s costs on a standard basis from 24 August 2021 up to and including the conclusion of the trial.

1. The respondent submits that the appropriate costs order are as follows:

(a)The applicant pay the respondent’s costs, calculated on the standard basis up to and including 24 August 2021;

(b)The applicant pay the respondent’s costs, calculated on the indemnity basis after 24 August 2021; and

(c)Save to the extent that the costs of the respondent are ordered to be paid by the applicant pursuant to subparagraphs (a) and (b) above, and are actually recovered, the respondent’s costs of the proceedings be paid from the estate on the indemnity basis

General principles

1. The general rule that applies to costs of litigation in civil matters is, of course, that…