Zevering v Callaghan; Callaghan v Zevering - [2011] QCA 254

SUPREME COURT OF QUEENSLAND

CITATION:

Zevering v Callaghan & Ors; Callaghan & Anor v Zevering [2011] QCA 254

PARTIES:

CORNELIA ELLEN ZEVERING
(appellant/respondent)
v
LYNNE CALLAGHAN and YVONNE SHIRLEY RAYMONT as trustees of THE OUTLOOK ESTATE TRUST
(respondents/applicants)

FILE NO/S:

Appeal No 10552 of 2010
SC No 10480 of 2009

DIVISION:

Court of Appeal

PROCEEDINGS:

General Civil Appeal - Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 29 July 2011
Further order delivered 23 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser and White JJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the further orders made

ORDERS:

The appeal be allowed.1.

Order 2 of the orders for costs made on 14 September 2010 be set aside, and in lieu thereof it be ordered that the respondents pay the appellant one-half of her costs of her cross-application, to be assessed on the standard basis.2.

Notwithstanding the orders made on 15 October 2009, the appellant be authorised to charge the respondents the sum of $150,000 as remuneration for her services as trustee of the Outlook Estate Trust (inclusive of remuneration which the trustees are authorised by the order of 15 October 2009 to pay the appellant); and the trustees are authorised to pay that sum (less an amount of $19,000 being uncorroborated expenses received by the appellant), out of the Outlook Estate Trust.3.

The respondents be authorised to recover their costs of the appellant’s cross-application, on the indemnity basis, and the appellant’s costs of the cross-application paid pursuant to this order, out of the Outlook Estate Trust.4.

The appellant and the respondents are to be paid their costs of the appeal out of the Outlook Estate Trust, on the indemnity basis.5.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – REMUNERATION – ALLOWANCE BY THE COURT – JURISDICTION GENERALLY – OTHER STATES AND TERRITORIES – where reasons for judgment delivered – where parties invited to make submissions regarding form of orders to be made – where appellant sought an order directing payment of money by respondents-trustees to her – where former solicitors for appellant claimed an equitable lien over any amount payable to her consequential to an order of the Court – where respondents sought an order under inherent jurisdiction of the Court and s 94 Trusts Act 1973 (Qld) authorising payment to appellant

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where appellant sought costs of her cross-application at first instance on the indemnity basis as she was claiming remuneration as a former trustee – where respondents submitted appellant had failed on a number of issues, which unduly prolonged the hearing – where respondents sought an order for their costs of the appellant’s cross-application, to be paid by the estate on an indemnity basis – where respondents submitted 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 Zevering v Callaghan; Callaghan v Zevering

Details

AGLC: Zevering v Callaghan; Callaghan v Zevering [2011] QCA 254
Case: [2011] QCA 254
Decision Date: 29 July 2011

CaseChat Overview and Summary

In the case of Zevering v Callaghan; Callaghan v Zevering, the appellant, Ms. Zevering, sought remuneration as a former trustee of the Outlook Estate Trust, and the respondents, the current trustees, sought orders regarding the payment of her costs. The dispute arose from the administration of the trust, and the matter was heard in the Supreme Court of Queensland. The appellant sought an order for remuneration from the respondents, while the former solicitors of the appellant claimed an equitable lien over any amount payable to her. The respondents sought an order under the inherent jurisdiction of the Court and under section 94 of the Trusts Act 1973 (Qld) authorising payment to the appellant.

The court had to determine whether the appellant was entitled to remuneration as a former trustee, and if so, the appropriate amount. Additionally, the court had to decide on the equitable lien claimed by the former solicitors and the form of orders to be made regarding the payment of costs. The court had to balance the inherent jurisdiction of the Court with the provisions of the Trusts Act 1973 (Qld) and consider the submissions made by both parties.

The court held that the appellant was entitled to remuneration for her services as a former trustee, and authorised the payment of $150,000, less an amount of $19,000 being uncorroborated expenses. The court set aside the previous order regarding costs and ordered that the respondents pay one-half of the appellant's costs of her cross-application on the standard basis. The court also authorised the respondents to recover their costs of the appellant's cross-application on the indemnity basis and ordered that the costs of the appeal be paid by the Outlook Estate Trust on the indemnity basis.

The appeal was allowed, and the orders made by the court provided clarity on the payment of remuneration and costs in the administration of the trust. The court's decision balanced the interests of the parties and provided a fair outcome in the circumstances of the case.

Orders

Orders of the court

The appeal be allowed.1.

Order 2 of the orders for costs made on 14 September 2010 be set aside, and in lieu thereof it be ordered that the respondents pay the appellant one-half of her costs of her cross-application, to be assessed on the standard basis.2.

Notwithstanding the orders made on 15 October 2009, the appellant be authorised to charge the respondents the sum of $150,000 as remuneration for her services as trustee of the Outlook Estate Trust (inclusive of remuneration which the trustees are authorised by the order of 15 October 2009 to pay the appellant); and the trustees are authorised to pay that sum (less an amount of $19,000 being uncorroborated expenses received by the appellant), out of the Outlook Estate Trust.3.

The respondents be authorised to recover their costs of the appellant’s cross-application, on the indemnity basis, and the appellant’s costs of the cross-application paid pursuant to this order, out of the Outlook Estate Trust.4.

The appellant and the respondents are to be paid their costs of the appeal out of the Outlook Estate Trust, on the indemnity basis.5.

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:	Zevering v Callaghan & Ors; Callaghan & Anor v Zevering [2011] QCA 254
PARTIES:	CORNELIA ELLEN ZEVERING (appellant/respondent) v LYNNE CALLAGHAN and YVONNE SHIRLEY RAYMONT as trustees of THE OUTLOOK ESTATE TRUST (respondents/applicants)
FILE NO/S:	Appeal No 10552 of 2010 SC No 10480 of 2009
DIVISION:	Court of Appeal
PROCEEDINGS:	General Civil Appeal - Further Orders
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	Judgment delivered 29 July 2011 Further order delivered 23 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Fraser and White JJA and Peter Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the further orders made
ORDERS:	The appeal be allowed.1. Order 2 of the orders for costs made on 14 September 2010 be set aside, and in lieu thereof it be ordered that the respondents pay the appellant one-half of her costs of her cross-application, to be assessed on the standard basis.2. Notwithstanding the orders made on 15 October 2009, the appellant be authorised to charge the respondents the sum of $150,000 as remuneration for her services as trustee of the Outlook Estate Trust (inclusive of remuneration which the trustees are authorised by the order of 15 October 2009 to pay the appellant); and the trustees are authorised to pay that sum (less an amount of $19,000 being uncorroborated expenses received by the appellant), out of the Outlook Estate Trust.3. The respondents be authorised to recover their costs of the appellant’s cross-application, on the indemnity basis, and the appellant’s costs of the cross-application paid pursuant to this order, out of the Outlook Estate Trust.4. The appellant and the respondents are to be paid their costs of the appeal out of the Outlook Estate Trust, on the indemnity basis.5.
CATCHWORDS:	EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – REMUNERATION – ALLOWANCE BY THE COURT – JURISDICTION GENERALLY – OTHER STATES AND TERRITORIES – where reasons for judgment delivered – where parties invited to make submissions regarding form of orders to be made – where appellant sought an order directing payment of money by respondents-trustees to her – where former solicitors for appellant claimed an equitable lien over any amount payable to her consequential to an order of the Court – where respondents sought an order under inherent jurisdiction of the Court and s 94 Trusts Act 1973 (Qld) authorising payment to appellant APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where appellant sought costs of her cross-application at first instance on the indemnity basis as she was claiming remuneration as a former trustee – where respondents submitted appellant had failed on a number of issues, which unduly prolonged the hearing – where respondents sought an order for their costs of the appellant’s cross-application, to be paid by the estate on an indemnity basis – where respondents submitted the…