- Unreported Judgment
- Appeal Pending
SUPREME COURT OF QUEENSLAND
Roberts v Pollock & Anor (No 2)  QSC 188
COLIN BENJAMIN ROBERTS (as the executor of the estate of ALISTAIR GOW HENDERSON, deceased)
DAVID ANDREW POLLOCK
WATCHTOWER BIBLE AND TRACT SOCIETY OF AUSTRALIA
BS No 6858 of 2018
Date of Orders: 31 July 2019
Date of Publication of Reasons: 5 August 2019
On the papers
Date of Orders: 31 July 2019
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – FORM AND SETTLING OF COSTS ORDERS – where the second respondent submitted that the first respondent had not conducted himself efficiently – where the second respondent submitted that if the first respondent’s costs were to be paid from the residue then those costs should be restricted to the costs of one day of hearing – whether the first respondent’s conduct of the case was appropriate
Uniform Civil Procedure Rules 1999 (Qld), r 700A
Buckton v Buckton  2 Ch 406, cited
Frizzo and Anor v Frizzo & Ors (No 2)  QSC 177, cited
Kerr v Kerr & Anor  QSC 323, cited
Murdocca v Murdocca (No 2)  NSWSC 505, followed
Roberts v Pollock & Anor  QSC 184, related
Roche v Roche & Anor (No 2)  SASC 75, cited
G R Dickson for the Applicant
R D Williams for the First Respondent
M Horvath for the Second Respondent
Thynne & Macatney for the Applicant
GHS Legal for the First Respondent
Michael Cooper Lawyer for the Second Respondent
The applicant, being the executor of the estate of Alistair Gow Henderson deceased (Mr Henderson) made application for declarations to determine whether certain money of Mr Henderson’s held with the Suncorp Bank passed to the first respondent or fell to residue and therefore to the second respondent.
On 31 July 2019, I made declarations, the effect of which was that the disputed money fell to the second respondent.
I heard the parties on costs and allowed the second respondent to deliver a short written submission which his counsel did before midday on 31 July 2019.
I made orders on the papers in these terms, relevantly to costs:
- The Applicant’s costs of the application be paid on an indemnity basis from the residue.
- No order as to the costs of the First and Second Respondents.
These are the reasons for the making of those orders.
Submissions of the parties
The applicant applied for his costs on an indemnity basis to be paid from the residue. Neither respondent opposed such an order. It was necessary for the applicant to make an application to quell the controversy between the respondents. It is appropriate that the applicant be paid his costs from residue.
The second respondent submitted that if the first respondent’s costs were to be paid from residue then those costs should be restricted to the costs of one day of hearing or, alternatively, a costs statement should be produced so costs could be fixed.
The second respondent’s submission was based on allegations that the first respondent had not conducted himself efficiently, necessitating three appearances.
During the course of oral submissions on costs by Mr Horvarth for the first respondent, I indicated my preliminary view as to costs, that view according with the orders that were ultimately made. Mr Horvarth told me there was no opposition to such a course.
Mr Williams for the second respondent, in his written submissions, did not oppose the orders I suggested.
As already observed, it was necessary for the applicant to seek a determination by the Court of the proper construction of the will. In circumstances where such clarification is necessary, all parties’ costs are often ordered to be paid out of the estate as an exception to the rule that costs follow the event.
Rule 700A of the Uniform Civil Procedure Rules provides as follows:
“700A Estates of deceased persons and trusts
This rule applies to –
- a proceeding under the Succession Act 1981, part 4; or
- another proceeding relating to an interest in property under a will or trust.
Without limiting the court’s discretion under these rules to make an order about costs in relation to all or part of the proceeding, the court may, in determining an order for costs, take into account the following matters –
- the value of the property the subject of the proceeding and, in particular, the value of the property about which there is a disputed entitlement;
- whether costs have been increased because of any one or more of the following –
- noncompliance with these rules;
- noncompliance with a practice direction;
- the litigation of unmeritorious issues;
- failure to make, promptly or at all, appropriate concessions or admissions;
- giving unwarranted attention to minor or peripheral issues;
- an offer of settlement made by a party to the proceeding.”
In Murdocca v Murdocca (No 2), Campbell J followed Kekewich J in Buckton v Buckton and thought that while all parties’ costs of an application to determine an issue of construction are often paid from the residue, if in reality the contest is between parties with adverse interests, then costs might properly follow the event. Buckton v Buckton has been consistently followed in Australia.
Costs though, remain discretionary.
The determination here
In the end all parties were content that the orders which were made ought to be made. Therefore, the delivery of reasons might seem unnecessary. However, given that Mr Horvarth’s submissions were based, at least in part, on criticism of how the first respondent, and therefore, his legal advisors, conducted the application, it is appropriate to deliver reasons.
I do not consider that the criticism of the first respondent’s conduct of the case is warranted. The first respondent sought to admit evidence of the surrounding circumstances against which the will was made. Initially that evidence was in an inadmissible form. One adjournment was necessary so that could be remedied. There was then some difficulty with producing a witness, Mr Webb, for cross-examination, and that necessitated the second adjournment. However, the evidence which was the subject of objection by the second respondent was ultimately admitted and was effectively determinative of the application.
Issues naturally arose with the presentation of the extrinsic evidence and no party can be reasonably blamed for any additional costs which were incurred.
Mr Williams made detailed submissions as to the legal principles which should be applied in construing the will against the evidence that he sought to have admitted, and in the main, those submissions were accepted. Mr Horvarth’s cross-examination of Mr Webb was efficiently conducted and helpful evidence was elicited. All parties assisted in the determination of the issues which in substance amounted to a contest between the two respondents.
The application did though require three appearances. There was a good deal of material. The costs of all three parties is likely to be substantial.
Both respondents have received significant benefits from Mr Henderson’s estate; the first respondent real property and a small amount of cash, and the second respondent cash and securities. By ordering that the applicant’s costs be paid from residue, the second respondent is bearing those costs. In all the circumstances, it is appropriate that the burden of the remainder of the costs of the application be shared between the respondents. That can be achieved by making no order as to costs.
For those reasons I made the orders recorded above.
 Roberts v Pollock & Anor  QSC 184 at .
 Roche v Roche & Anor (No 2)  SASC 75 at  and following, and the cases referred thereto. See also the judgment of Applegarth J in Frizzo and Anor v Frizzo & Ors (No 2)  QSC 177 at  and .
  NSWSC 505.
  2 Ch 406.
 Murdocca v Murdocca (No 2)  NSWSC 505.
 Kerr v Kerr & Anor  QSC 323.
- Published Case Name:
Roberts v Pollock & Anor (No 2)
- Shortened Case Name:
Roberts v Pollock (No 2)
 QSC 188
05 Aug 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 184||31 Jul 2019||Executor's application for directions whether money in the deceased's credit passed by specific bequest or forms part of the residuary; determination that money in one account forms part of a specific bequest and that money in a different account forms part of the residuary: Davis J.|
|Primary Judgment|| QSC 188||05 Aug 2019||Costs judgment: Davis J.|
|Notice of Appeal Filed||File Number: Appeal 9206/19||28 Aug 2019||-|