Trinder v Ciniglio (No 2)

Case [2020] QSC 257


SUPREME COURT OF QUEENSLAND

CITATION:

Trinder v Ciniglio (No 2) [2020] QSC 257

PARTIES:

CRAIG GRAEME TRINDER

(Plaintiff)

v
JULIE ANN CINIGLIO & SHANE STUART ELLIS

(Defendants)

FILE NO/S:

BS 6320 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application for Costs

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Brown J

ORDER:

The order of the Court is that:

1.   That the Plaintiff pay the Defendants’ costs of the proceeding on a standard basis up until 4 March 2019 and on an indemnity basis from 4 March 2019 save in respect of the claim with respect to the 27 September 2017 gift.

2.   That the Plaintiff pay the Defendants’ costs in respect of the claim with respect to the 27 September 2017 gift on the standard basis.

3.   The Grant of Probate be returned to the Defendants as Executors of the Estate under the Will of Steven Thomas Trinder dated 15 August 2016 propounded in solemn form of law.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – COSTS OUT OF FUND OR PROPERTY – LITIGATION CAUSED BY TESTATOR, PERSONAL REPRESENTATIVE OR BENEFICIARY – RELATING TO EXECUTION OR REVOCATION OF WILL – COSTS OF PERSONAL REPRESENTATIVE OR APPLICANT – where deceased made will in March 2016 and August 2016 – where Plaintiff propounded March 2016 of which he was executor – where dispute over testamentary capacity – where August 2016 Will held to be last will and testament of deceased – where Plaintiff commissioned expert report which suggested lack of testamentary capacity at August 2016– where plaintiff expert changed opinion to suggest testamentary capacity on eve of trial – where Defendants made UCPR and Calderbank offers – where Plaintiff rejected offers – where Defendants wholly successful in defending plaintiff’s claims at trial – whether Plaintiff reasonably propounded March 2016 Will – whether costs follow the event – whether Plaintiff should pay Defendants costs on indemnity basis

Uniform Civil Procedure Rules 1999 (Qld), r 361

Emmanuel Management Pty Ltd (in liquidation) & Ors v Foster’s Brewing Group Pty Ltd & Ors and Coopers & Lybrand & Ors[2003] QSC 299, cited
Frizzo v Frizzo (No 2)[2011] QSC 177, applied

Kozac v Matthews [2007] QSC 204, considered

COUNSEL:

D Morgan for the Plaintiff

I Erskine for the Defendants

SOLICITORS:

Michael Dwyer Solicitor for the Plaintiff

Cronin Miller Litigation for the Defendant

  1. The Defendants were wholly successful in defending the claims made by the Plaintiff in this matter. 

    Principles

  2. The principles relevant in this context have been set out by Applegarth J in Frizzo v Frizzo (No 2)[1] (Frizzo). While costs normally follow the event, as Applegarth J has pointed out in Frizzo,[2] the court may exercise its discretion to depart from the general position in cases involving wills, particularly where:

    (a)The testator has been the effective cause of the litigation, such as the state of testamentary papers and habits…

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AGLC
Trinder v Ciniglio (No 2) [2020] QSC 257
Case
[2020] QSC 257
Decision Date

CaseChat Overview and Summary

The case of Trinder v Ciniglio (No 2) involves a dispute over the validity of a will executed by the deceased, Steven Thomas Trinder, and the associated costs incurred during the litigation. The Plaintiff, who was the executor of the March 2016 will, propounded this will over the August 2016 will. The Defendants contested the validity of the March 2016 will and argued that the August 2016 will was the last valid will of the deceased. The dispute also included claims regarding the testamentary capacity of the deceased and undue influence in relation to a gift made in September 2017. The court had to determine whether the Plaintiff reasonably propounded the March 2016 will, the reasonableness of the costs incurred, and whether the Plaintiff should pay the Defendants' costs on an indemnity basis.

The legal issues before the court were primarily centered on the validity of the wills, the testamentary capacity of the deceased, and the appropriate allocation of costs between the parties. The court had to consider the reasonableness of the Plaintiff's actions in propounding the March 2016 will, the validity of the claims made, and the conduct of the litigation. The court also examined the offers made under the Uniform Civil Procedure Rules (UCPR) and Calderbank and whether the Plaintiff's rejection of these offers was justified. The Defendants sought an indemnity costs order, arguing that the Plaintiff's litigation was without merit and that the Plaintiff should bear the costs of the unsuccessful claims.

In its judgment, the court found that the Plaintiff did not have reasonable grounds to propound the March 2016 will over the August 2016 will. The court noted that the Plaintiff did not conduct a proper inquiry into the deceased's capacity at the time of the August will, despite the lack of access to medical records. The allegations of lack of capacity were largely based on the deceased's terminal illness and other factors that did not necessarily indicate a lack of mental capacity. The court also highlighted that the Plaintiff had engaged in negotiations with the deceased after the execution of the August will, further undermining the claims of lack of capacity. The court concluded that the Plaintiff pursued the proceedings on a tenuous basis without proper grounds.

The court ordered that the Plaintiff pay the Defendants' costs on a standard basis up until 4 March 2019 and on an indemnity basis from that date, except for the claim concerning the September 2017 gift, which was to be paid on the standard basis. The court also ordered that the Grant of Probate be returned to the Defendants as the Executors of the Estate under the August 2016 will. This decision reflects the court's view that the Plaintiff's litigation was not well-founded and that the Defendants should be compensated for the costs incurred as a result of the Plaintiff's actions.

Orders

Orders of the court

The order of the Court is that:

1. That the Plaintiff pay the Defendants’ costs of the proceeding on a standard basis up until 4 March 2019 and on an indemnity basis from 4 March 2019 save in respect of the claim with respect to the 27 September 2017 gift.

2. That the Plaintiff pay the Defendants’ costs in respect of the claim with respect to the 27 September 2017 gift on the standard basis.

3. The Grant of Probate be returned to the Defendants as Executors of the Estate under the Will of Steven Thomas Trinder dated 15 August 2016 propounded in solemn form of law.

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

The claim in respect of the September 2017 gift was not raised by the Plaintiff until August 2019. In relation to that claim, the Defendants bore the onus of proof to rebut the presumption of undue influence. It is not appropriate that an indemnity costs order should be made in respect of that claim. Costs should follow the event but be paid on the standard basis.Conclusion I consider that the appropriate costs order is therefore that the Plaintiff pay the Defendants’ costs on a standard basis up until 4 March 2019 and on an indemnity basis from 4 March 2019 save in respect of the claim with respect to the September 2017 gift. The Defendants also seek an order that the Grant of Probate should be returned to them as the Executors of the Estate under the August Will propounded in solemn for of law. Such an order is proper and consistent with my reasons for judgement given on 16 June 2020.Orders The orders I make in this matter are:1. That the Plaintiff pay the Defendants’ costs of the proceeding on a standard basis up until 4 March 2019 and on an indemnity basis from 4 March 2019 save in respect of the claim with respect to the 27 September 2017 gift.2. That the Plaintiff pay the Defendants’ costs in respect of the claim with respect to the 27 September 2017 gift on the standard basis.3. That the Grant of Probate be returned to the Defendants as Executors of the Estate under the Will of Steven Thomas Trinder dated 15 August 2016 propounded in solemn form of law.

Ratio Decidendi

Legal Principle Established

There was considerable evidence showing that the size of the estate was not large and significant costs have been incurred over the period of this litigation both in terms of legal costs and incidental expenses of the estate. While the Plaintiff purported to be concerned about his nephews and niece in bringing these proceedings, the conduct of the action was not consistent with someone seeking to preserve as much of the estate for those beneficiaries, including any family provision application made by them. That is particularly so in circumstances where the size of the estate was not large.Consideration While the estate planning undertaken by the Deceased, which included the August Will, had some complexity and occurred within some six months of the March Will, I consider that the Plaintiff pursued these proceedings on a fairly tenuous basis without a proper enquiry into the facts and reasonable grounds to do so. In particular, the Defendant did not properly enquire into the Deceased’s capacity at the time of the August Will, even accepting the lack of access to medical records of the Deceased. The allegations of lack of capacity pleaded were largely based on the Deceased’s terminal illness which was not an affliction of the mind per se, the fact that he was taking medication which included opioids, the Plaintiff’s evidence that the Deceased had relapsed since completing the March Will and that he was drinking excessive amounts of alcohol and taking illicit drugs, which was not accepted. The Plaintiff had also engaged in negotiations and transacted with the Deceased in relation to resolving mutual business interests after the execution of the August Will. The Plaintiff also alleged that the Deceased held an irrational and delusional belief that he was “ripping” him off, notwithstanding that their relationship had soured particularly in relation to their common investments and business interests. While the Plaintiff contends that the litigation was appropriate given the treatment of the Deceased’s children in the August Will that was explained by the Deceased himself in his statutory declaration and directions to the trustees. Further the Plaintiff was well aware of the estrangement of the Deceased from his children as was apparent from his evidence. While the Plaintiff, in his submissions, seeks to attribute blame for the necessity to bring the case upon the Deceased’s solicitor and the lack of file notes, of which there were some criticisms that could be made, I do not consider that gave the Plaintiff reasonable grounds to pursue the litigation. For the reasons outlined in the judgment, this was not a case where ‘red flags’ were present such that the solicitor should have been on notice about any lack of capacity on behalf of the Deceased. Other matters relied upon by the Plaintiff, such as the timing of the Deceased’s admission to hospital, were ill-based or trying to attach great significance to matters that were readily explicable when considered in their context.[10] That was similarly the case in terms of the suspicious circumstances which the Plaintiff sought to raise. [10]For instance, the Deceased not referring to his daughter in discussions with Mr Dimon where he had not seen her for some years in circumstances where the Plaintiff knew of the family dynamics and the Deceased’s estrangement from his daughter.