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  • Unreported Judgment

PL v R

 

[2017] QSC 311

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Mr PL v Mrs R [2017] QSC 311

PARTIES:

MR PL

(applicant)

v

MRS R

(respondent)

FILE NO:

BS 3863 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

15 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Brown J

ORDER:

That pursuant to s 21 of the Succession Act 1981 (Qld) each of the parties’ costs of the originating application be assessed on an indemnity basis and paid out of the estate of Mr L.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the applicant had partial success in an originating application for the making of a statutory will – where a statutory will was ordered in different terms than sought by the applicant – where the parties were invited to make further submissions as to the appropriate costs order – consideration of the appropriate costs order

Succession Act 1981 (Qld), s 21

COUNSEL:

P E Sorensen for the applicant

R D Williams for the respondent

SOLICITORS:

Cornford-Scott Lawyers for the applicant

Springwood Lawyers for the respondent

  1. Further to the orders that I made in relation to this matter of 1 November 2017, both parties apply for an order that each be paid their costs on an indemnity basis.  The applicant, as the litigation guardian of Mr L, had partial success insofar as the Court made a statutory will, although not in the terms which were sought.  Similarly, Ms A, the litigation guardian for Mrs R had some success in her arguments raised in opposition to the proposed will. 
  2. Mrs R was a necessary party to the application and it was appropriate for her to be represented by Ms A as litigation guardian in order for Mrs R’s interests under Mr L’s will to be protected.  The applicant in its submissions no longer submits that the respondent’s costs should not be paid out of the estate.  An issue does arise in the present case as to whether in the case of the litigation guardian of Mr L, costs should be awarded on an indemnity basis, given that the will made on 11 November 2016 was found by me to be of doubtful validity in light of the medical evidence (that had been obtained and indeed instigated by Mr L’s litigation guardian), raising doubt as to his testamentary capacity.  However, that said, I note that Mr L’s litigation guardian and Mr L were advised by the solicitor responsible for drafting the will that he could take the will instructions from Mr L to draft a will, although it could be the subject of dispute as to whether Mr L had testamentary capacity to make such a will and that would be a matter for the Court to decide. 
  3. Given the application brought was partially successful and Mrs R’s litigation guardian was properly a party, I order that the parties’ costs of the originating application be assessed on an indemnity basis and paid out of the estate of Mr L. 

Order

  1. I order that pursuant to s 21 of the Succession Act 1981 (Qld) each of the parties’ costs of the originating application be assessed on an indemnity basis and paid out of the estate of Mr L.
Close

Editorial Notes

  • Published Case Name:

    Mr PL v Mrs R

  • Shortened Case Name:

    PL v R

  • MNC:

    [2017] QSC 311

  • Court:

    QSC

  • Judge(s):

    Brown J

  • Date:

    15 Dec 2017

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QSC 249 01 Nov 2017 Substantive Judgment
Primary Judgment [2017] QSC 311 15 Dec 2017 Costs Judgment

Appeal Status

No Status