Yeomans v Yeomans and Anor (No 2 ) - [2011] QSC 415

SUPREME COURT OF QUEENSLAND

CITATION:

Yeomans v Yeomans & Anor (No 2 ) [2011] QSC 415

PARTIES:

ROBYN JOY YEOMANS
(applicant)
v
ROBYN JOY YEOMANS and GREGORY EARLE SMITH (as executors of the will of Gregory Edward Stanley Smith deceased)
(respondents)

FILE NO:

BS899 of 2010

DIVISION:

Trial Division

PROCEEDING:

Submissions on costs

DELIVERED ON:

22 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

Applicant’s submissions filed 30 November 2011; respondents’ submissions filed 6 December 2011

JUDGE:

Mullins J

ORDER:

1. The applicant’s costs of the proceeding be assessed on the standard basis and paid from the estate of Gregory Edward Stanley Smith deceased.

2. Pursuant to section 253 of the Supreme Court Act 1995, each party has leave to appeal this costs order.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRACTICE – PROCEDURE, ORDERS AND OTHERS MATTERS – other procedural matters – orders for costs following delivery of reasons for judgment – where applicant successful in her application for further provision – where executors had made an offer to settle that was $2,500 less than what the applicant obtained by way of further provision – where applicant’s approach to the proceeding was unreasonable – where applicant’s costs to be paid from the estate ordered to be assessed on the standard basis rather than the indemnity basis

COUNSEL:

G R Dickson for the applicant
C J O’Neill for the respondents

SOLICITORS:

Crilly Lawyers for the applicant
Bennett & Philp for the respondents

I delivered my reasons for judgment in this family provision application on 22 November 2011: Yeomans v Yeomans & Anor [2011] QSC 344 (the reasons). In accordance with directions made on that date, the applicant filed submissions on costs on 30 November 2011 together with a supporting affidavit from the applicant’s solicitor, Mr Crilly, and the respondents filed submissions on costs on 6 December 2011 together with a supporting affidavit of the respondents’ solicitor, Mr Young. No party gave notice requiring an oral hearing to argue costs, so that I will determine costs on the basis of the parties’ written submissions together with the additional affidavits that were filed with those submissions.

Offers to settle

Three formal offers to settle were made which were not accepted.

On 15 October 2010 the respondents made an offer to settle the applicant’s claim for about $10,000 less than the further provision that the applicant has been ordered to receive. The offer was for the applicant to retain the Nissan Navara, the caravan and all jointly purchased house assets from the Forestdale property and receive a lump sum of $40,000.

The respondents made a second offer to settle on 19 April 2011 which was even closer to the ultimate provision obtained by the applicant in the proceeding, as it allowed for the applicant to retain the moneys which were distributed to her from the safe. It was therefore effectively only $2,500 less than what the applicant ultimately obtained by way of further provision (without taking into account costs implications) in the…

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 Yeomans v Yeomans and Anor (No 2 )

Details

AGLC: Yeomans v Yeomans and Anor (No 2 ) [2011] QSC 415
Case: [2011] QSC 415
Decision Date: 22 December 2011

CaseChat Overview and Summary

The case of Yeomans v Yeomans and Anor (No 2) involved a dispute between the applicant, Yeomans, and the executors of the estate of Gregory Edward Stanley Smith, who had recently passed away. Yeomans sought further provision from the estate under the Family Provision Act, arguing for a more substantial financial award than had been previously provided. The executors, in response, had offered a settlement that was $2,500 less than what Yeomans eventually received by way of further provision. The court was tasked with determining the appropriate basis for assessing Yeomans' costs and whether her approach to the proceeding was reasonable.

The central legal issue before the court was the appropriate basis for assessing Yeomans' costs in light of her successful application for further provision. The executors argued that Yeomans' approach to the proceedings was unreasonable, and thus, her costs should be assessed on the standard basis rather than the indemnity basis. They contended that Yeomans' insistence on pursuing the matter to trial despite a reasonable settlement offer contributed to unnecessary costs and expenses.

The court found Yeomans' approach to the proceeding to be unreasonable given that she had a settlement offer that was only $2,500 less than what she ultimately received. The court held that Yeomans' insistence on pursuing the matter to trial, despite the reasonable settlement offer, contributed to the escalation of costs. Consequently, the court ordered that Yeomans' costs be assessed on the standard basis rather than the indemnity basis, and that these costs be paid from the estate of Gregory Edward Stanley Smith. Additionally, the court granted leave to each party to appeal this costs order under section 253 of the Supreme Court Act 1995.

In conclusion, the court determined that Yeomans' costs were to be assessed on the standard basis due to her unreasonable approach to the proceeding, which led to unnecessary costs. The executors' offer of settlement was deemed reasonable, and Yeomans' pursuit of the matter to trial despite this offer was seen as contributing to the escalation of costs. The court's decision underscored the importance of considering the reasonableness of a party's approach to proceedings when determining the appropriate basis for assessing costs.

Orders

Orders of the court

1. The applicant’s costs of the proceeding be assessed on the standard basis and paid from the estate of Gregory Edward Stanley Smith deceased.

2. Pursuant to section 253 of the Supreme Court Act 1995, each party has leave to appeal this costs 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

Full text does not contain this section.

CITATION:	Yeomans v Yeomans & Anor (No 2 ) [2011] QSC 415
PARTIES:	ROBYN JOY YEOMANS (applicant) v ROBYN JOY YEOMANS and GREGORY EARLE SMITH (as executors of the will of Gregory Edward Stanley Smith deceased) (respondents)
FILE NO:	BS899 of 2010
DIVISION:	Trial Division
PROCEEDING:	Submissions on costs
DELIVERED ON:	22 December 2011
DELIVERED AT:	Brisbane
HEARING DATE:	Applicant’s submissions filed 30 November 2011; respondents’ submissions filed 6 December 2011
JUDGE:	Mullins J
ORDER:	1. The applicant’s costs of the proceeding be assessed on the standard basis and paid from the estate of Gregory Edward Stanley Smith deceased. 2. Pursuant to section 253 of the Supreme Court Act 1995, each party has leave to appeal this costs order.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRACTICE – PROCEDURE, ORDERS AND OTHERS MATTERS – other procedural matters – orders for costs following delivery of reasons for judgment – where applicant successful in her application for further provision – where executors had made an offer to settle that was $2,500 less than what the applicant obtained by way of further provision – where applicant’s approach to the proceeding was unreasonable – where applicant’s costs to be paid from the estate ordered to be assessed on the standard basis rather than the indemnity basis
COUNSEL:	G R Dickson for the applicant C J O’Neill for the respondents
SOLICITORS:	Crilly Lawyers for the applicant Bennett & Philp for the respondents