Williams v Williams - [2004] QSC 325

SUPREME COURT OF QUEENSLAND

CITATION:

Williams v Williams [2004] QSC 325

PARTIES:

NANNETTE JANE WILLIAMS
(first applicant)
and
SAM JOHN WILLIAMS (by his litigation guardian NANNETTE JANE WILLIAMS)
(second applicant)
v
JOHN CHARLES WILLIAMS and BENJAMIN DEAN WILLIAMS (as executors of the estate of Marcus John Charles Williams – Presumed Deceased)
(respondents)

FILE NO:

BS2396/04

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

17 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2004

JUDGE:

Wilson J

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where application for removal of executors successful – where respondents not entitled to indemnity out of estate – whether costs should be assessed on indemnity basis – whether there is misconduct in respect of application for removal.

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – COSTS OF ISSUES – where court asked for written submissions as to first applicant’s standing to bring application – where first applicant found not to have standing – whether respondents should have costs of written submissions.

COUNSEL:

A Collins for the applicants
I Perkins for the respondents

SOLICITORS:

Damien Bourke & Associates for the applicants
Quinn & Scattini for the respondents

WILSON J: I refer to my reasons for judgment delivered on 26 August 2004. The parties have now made written submissions on costs.

Clearly the respondents should pay the second applicant’s costs of and incidental to the application (including reserved costs). The order for costs will be against the respondents personally: it is not intended that they should be entitled to indemnity out of the estate. The second applicant has asked that those costs be assessed on the indemnity basis, while the respondents have submitted that they should be assessed on the standard basis.

In the usual case, a successful litigant is entitled to costs on the standard basis. There must be some special or unusual feature in the case to justify a departure from the ordinary practice: Di Carlo v Dubois [2002] QCA 225 at [37]; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 400 - 401; Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 231. Commonly cited examples are the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud; misconduct that causes loss of time to the court and the other parties; the fact that the proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law; the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions; the imprudent refusal of an offer to compromise; and costs against a contemnor: Di Carlo v Dubois [2002] QCA 225 at [37].

The second applicant has submitted that this an appropriate case for indemnity costs because –

(a) it is an…

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 Williams v Williams

Details

AGLC: Williams v Williams [2004] QSC 325
Case: [2004] QSC 325
Decision Date: 17 September 2004

CaseChat Overview and Summary

The case of Williams v Williams involved a dispute concerning the estate of a deceased person. The applicants sought the removal of certain executors from their positions, arguing that their conduct warranted their dismissal. The respondents, who were the executors in question, contested the application and defended their actions. The court was required to determine whether the applicants were entitled to have the executors removed, and if so, whether the respondents were entitled to indemnity costs from the estate. Additionally, the court needed to address whether the costs of the application should be assessed on an indemnity basis.

The central legal issues before the court included the proper assessment of costs in the context of an application for the removal of executors, the circumstances under which costs should follow the event, and whether there was any misconduct by the applicants warranting an indemnity costs order. The court considered whether the applicants' lack of standing to bring the application should result in the respondents being awarded costs for the written submissions on this issue. Furthermore, the court examined whether the general rule of costs following the event should be departed from in this case.

The court found that the applicants were not entitled to have the executors removed and did not have standing to bring the application. Consequently, the respondents were not entitled to indemnity costs out of the estate. However, the court determined that the applicants' conduct did not warrant an order for costs on an indemnity basis. Instead, the court held that the respondents were entitled to the costs of the written submissions regarding the first applicant's standing. The court concluded that the general rule of costs following the event should not be departed from, and thus, the respondents were entitled to the costs of the written submissions on this issue.

The final orders of the court were that the respondents were to be awarded the costs of the written submissions on the issue of the first applicant's standing. No order for costs on an indemnity basis was made, and the application for the removal of the executors was dismissed.

Orders