Thompson v Cyati (No. 2) - [2025] QDC 32

DISTRICT COURT OF QUEENSLAND

CITATION:

Thompson v Cyati (No. 2) [2025] QDC 32

PARTIES:

EMMA NARELLE CATHRYN THOMPSON

(Applicant)

v

JULENE FRANCES CYATI as executor of the estate of FRANCIS THOMPSON, deceased.

(Respondent)

FILE NO:

BD 1202 of 2017

DIVISION:

Civil

PROCEEDING:

Costs Hearing.

ORIGINATING COURT:

Brisbane District Court.

DELIVERED ON:

24 March 2025.

DELIVERED AT:

Brisbane.

HEARING DATE:

12 February 2025.

JUDGE:

Byrne KC DCJ.

ORDER:

1.       Save in respect of any costs which are already the subject of a costs order:

a)       the applicant is to pay the respondent’s costs of the proceeding on the standard basis, as assessed or agreed, to and including 19 November 2023; and

b)      the applicant is to pay the respondent’s costs of the proceeding on the indemnity basis, as assessed or agreed, on and from 20 November 2023.

2.       The enforcement of the costs orders are stayed until 17 June 2025, or further order.

3.       The parties are at liberty to apply on five clear day’s notice in respect of any such further order.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – where the applicant has appealed the refusal of an application for provision from an estate – where the respondent seeks costs of that hearing – where the applicant applies for a stay of enforcement of the order until the appeal is determined – whether it is appropriate in the circumstances to stay the enforcement of the order and to delay the costs hearings.

PROCEDURE – COSTS – INDEMNITY COSTS – where the applicant and respondent are children of the deceased – where the deceased appointed the respondent as the executor of the estate – where the applicant unsuccessfully applied for provision from the estate – whether it is just in the circumstances to order the applicant to pay the respondent’s costs – whether it is just to order that any part of those costs be paid on the indemnity basis.

LEGISLATION:

District Court of Queensland Act 1967 (Qld), s. 118B.

Succession Act 1981 (Qld), s. 41.

Uniform Civil Procedure Rules 1999 (Qld), rr. 5, 307, 352, 361A, 671(2).

CASES:

Calderbank v Calderbank [1976] Fam 93.

Colgate-Palmolive v Cussons (1993) 46 FCR 225.
Di Carlo v Dubois [2002] QCA 225,
Drew v Makita [2008] QCA 312.
Grbavac v Hart [1997] 1 VR 154.
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2) [2005] 13 VR 435.
Kozak v Matthews & Anor [2007] QSC 204.
Northern Territory v Sangare (2019) 265 CLR 164.
Singer v Berghouse (1993) 114 ALR 521.
Oshlack v Richmond River Council (1998) 193 CLR 72.

Thompson v Cyati [2024] QDC 205.

COUNSEL:
The applicant was self-represented.

Ms. A. Rae for the respondent.

SOLICITORS:
The applicant was self-represented.

Bridge Brideaux Porta Lawyers for the respondent.

Introduction

In April 2017 the applicant commenced proceedings for provision under s. 41 of the Succession Act 1981. On 29 November 2024, I refused that…

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 Thompson v Cyati (No. 2)

Details

AGLC: Thompson v Cyati (No. 2) [2025] QDC 32
Case: [2025] QDC 32
Decision Date: 24 March 2025.

CaseChat Overview and Summary

In the case of Thompson v Cyati, the applicant, a child of the deceased, had sought provision from the estate administered by the respondent, who was also a child of the deceased and the executor of the estate. Following the dismissal of her application, the applicant sought to appeal the decision and applied for a stay of enforcement of the orders, including those pertaining to costs. The respondent opposed the application for a stay and sought indemnity costs for the costs hearing. The applicant argued that it would be unjust to enforce the costs orders while the appeal was pending, while the respondent contended that the costs hearing should proceed.

The court examined the grounds for a stay under r. 761 of the UCPR, concluding that there was no existing order to stay and that the appeal did not automatically confer jurisdiction. The court also considered the applicant’s argument regarding natural justice and her concerns about the respondent disbursing the estate and enforcing costs orders before the appeal was heard. However, the court found that there was no real risk that the respondent would fail to recoup money necessary to the estate if the applicant was ultimately successful in the appeal. Additionally, the court noted the importance of finality in administering the estate and the potential for injustice if the costs orders were not enforced. Consequently, the court denied the application for a stay.

The court ordered that the applicant pay the respondent’s costs of the proceeding on the standard basis up to 19 November 2023 and on the indemnity basis from 20 November 2023. The enforcement of these costs orders was stayed until 17 June 2025, or further order. The parties were granted liberty to apply for further orders with five clear days’ notice.

Orders

Orders of the court

1. Save in respect of any costs which are already the subject of a costs order:

a) the applicant is to pay the respondent’s costs of the proceeding on the standard basis, as assessed or agreed, to and including 19 November 2023; and

b) the applicant is to pay the respondent’s costs of the proceeding on the indemnity basis, as assessed or agreed, on and from 20 November 2023.

2. The enforcement of the costs orders are stayed until 17 June 2025, or further order.

3. The parties are at liberty to apply on five clear day’s notice in respect of any such further order.

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

On 7 February 2025, the applicant applied for a stay of my decision, “including pertaining to costs” under r. 671(2) of the UCPR. Regardless of the precise wording of the application, it is clear that the applicant wants to preserve her position in terms of my judgment of 29 November 2024 and to have any costs application stayed or adjourned until the determination of the appeal against the primary judgment.Consideration – Stay of enforcement. On 15 January 2025 the applicant filed an application for the costs hearing to be adjourned until after the appeal is heard. On 7 February 2025 she filed an amended application that struck out that application and in its stead sought an order staying “the enforcement and Orders dated 29 November 2024” made in these proceedings, “including pertaining to costs” under r. 761(2) of the UCPR. The applicant has filed an affidavit that asserts that she understands it would be a denial of natural justice if further steps, including the making of a costs order, were taken given that an appeal has been lodged against my earlier ruling. She does not explain why that would be so in either the affidavit or in oral submissions. She does express a concern that the respondent will both disburse the estate and proceed to enforce any costs order before the appeal is heard, thereby entailing bankruptcy proceedings. She bases her concern on what she says is past behaviour. The respondent takes issue with the ability to amend the application without leave, and contends that the costs hearing should proceed. Whether leave is required, or not, is an issue I need not dwell on as I am not satisfied that a stay can be granted. While the application is to stay the enforcement and orders I made, r. 761 only confers power to stay the enforcement of the orders. There is nothing to enforce. My order refused the application. It does not require enforcement action to be given effect. Further, it would not be appropriate to injunct her from doing what she is entitled to do, on the material before me. If I am wrong about that, I would have refused the application because, regardless of what the merits of the appeal are, there is no real risk of the respondent failing to recoup any money necessary to the estate were the applicant ultimately successful. The undertaking given by the respondent in her affidavit of 28 August 2023 concerning the interim distributions would apply on any fresh assessment concerning a provision by the Court of Appeal or this Court. Also, the passage of time means that there is real utility in finally administering the estate. To do otherwise would be, to adopt the terminology of Keane JA in Drew v Makita,[2] failing to ensure that final orders are efficacious and would leave a residue of avoidable injustice with the successful party.[2][2008] QCA 312 I cannot make a stay order under r. 761 as to costs. There has not been any order yet to be stayed and, in any event, r. 761 requires that an appeal be filed before jurisdiction is granted.

CITATION:	Thompson v Cyati (No. 2) [2025] QDC 32
PARTIES:	EMMA NARELLE CATHRYN THOMPSON (Applicant) v JULENE FRANCES CYATI as executor of the estate of FRANCIS THOMPSON, deceased. (Respondent)
FILE NO:	BD 1202 of 2017
DIVISION:	Civil
PROCEEDING:	Costs Hearing.
ORIGINATING COURT:	Brisbane District Court.
DELIVERED ON:	24 March 2025.
DELIVERED AT:	Brisbane.
HEARING DATE:	12 February 2025.
JUDGE:	Byrne KC DCJ.
ORDER:	1. Save in respect of any costs which are already the subject of a costs order: a) the applicant is to pay the respondent’s costs of the proceeding on the standard basis, as assessed or agreed, to and including 19 November 2023; and b) the applicant is to pay the respondent’s costs of the proceeding on the indemnity basis, as assessed or agreed, on and from 20 November 2023. 2. The enforcement of the costs orders are stayed until 17 June 2025, or further order. 3. The parties are at liberty to apply on five clear day’s notice in respect of any such further order.
CATCHWORDS:	PROCEDURE – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – where the applicant has appealed the refusal of an application for provision from an estate – where the respondent seeks costs of that hearing – where the applicant applies for a stay of enforcement of the order until the appeal is determined – whether it is appropriate in the circumstances to stay the enforcement of the order and to delay the costs hearings. PROCEDURE – COSTS – INDEMNITY COSTS – where the applicant and respondent are children of the deceased – where the deceased appointed the respondent as the executor of the estate – where the applicant unsuccessfully applied for provision from the estate – whether it is just in the circumstances to order the applicant to pay the respondent’s costs – whether it is just to order that any part of those costs be paid on the indemnity basis.
LEGISLATION:	District Court of Queensland Act 1967 (Qld), s. 118B. Succession Act 1981 (Qld), s. 41. Uniform Civil Procedure Rules 1999 (Qld), rr. 5, 307, 352, 361A, 671(2).
CASES:	Calderbank v Calderbank [1976] Fam 93. Colgate-Palmolive v Cussons (1993) 46 FCR 225. Di Carlo v Dubois [2002] QCA 225, Drew v Makita [2008] QCA 312. Grbavac v Hart [1997] 1 VR 154. Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2) [2005] 13 VR 435. Kozak v Matthews & Anor [2007] QSC 204. Northern Territory v Sangare (2019) 265 CLR 164. Singer v Berghouse (1993) 114 ALR 521. Oshlack v Richmond River Council (1998) 193 CLR 72. Thompson v Cyati [2024] QDC 205.
COUNSEL:	The applicant was self-represented. Ms. A. Rae for the respondent.
SOLICITORS:	The applicant was self-represented. Bridge Brideaux Porta Lawyers for the respondent.