Hodgens v Hodgens[2008] QCA 80

SUPREME COURT OF QUEENSLAND

[1]  JERRARD JA:  These proceedings were appeals against orders made in the Trial Division of this Court on 17 November 2006 and 24 November 2006 respectively.  Appeal number 11016 of 2006[1] is against orders 6 and 7(a) made on 17 November 2006,[2] after a hearing on 9 November 2006, in proceedings concerning probate of the Will executed by Vivian Thomas Hodgens in 1997 (“the 1997 Will”).  The appeal in 11017 of 2006[3] is against the refusal, on 24 November 2006,[4] of leave to appeal order number 7 made on 17 November 2006, which was an order as to costs.  In appeal number 11016 of 2006, the appellant had purported to appeal order number 7 without first getting leave under s 253 of the Supreme Court Act 1995 (Qld).

[2] The learned judge conducting the proceedings heard on 9 November 2006 was hearing competing applications.  One had been filed by the appellant Errol Hodgens on 31 October 2003.[5]  He sought orders revoking a grant of probate made of a Will dated 21 May 1992 (“the 1992 Will”) of Vivian Thomas Hodgens.  That grant of probate made on 17 October 2003 was made to the respondents to this appeal; Errol Hodgens had asked, in his application, for a declaration that the 1997 Will revoked the 1992 Will.  Errol Hodgens had also applied for a grant of probate of the 1997 Will to himself as the executor named in that Will. 

[3] The competing application filed by the respondents nearly three years later, on 20 September 2006, sought the removal of Errol Hodgens as executor and trustee of the estate of Vivian Hodgens.[6]  It asked for an order that the Public Trustee be appointed as executor and trustee, or administrator and trustee, or administrator with the 1997 Will attached, and sought orders that Errol Hodgens pay the respondents’ costs thrown away by reason of an application by them for probate of the 1992 Will. 

Background matters

[4] Vivian Hodgens died on 30 July 2003, leaving seven surviving children.  The appellant and the respondents are three of them.  The respondents were the executors of the 1992 Will, and the appellant was the executor and trustee of the 1997 Will.  Vivian Hodgens had lived at the Masonic Village Hostel in Townsville, and then at the Good Shepherd Nursing Home in Townsville, prior to his death.  The appellant had lived in Vivian Hodgens’ house at 10 Buckby Street, Pallarenda, Townsville, prior to his father’s death, and held an Enduring Power of Attorney dated 7 August 2000 from Vivian Hodgens.  Vivian Hodgens was an elderly man when admitted to the Masonic Village Hospital, suffering from what was diagnosed as multi infarct dementia. 

[5] Material read by the respondents before the learned trial judge on 9 November 2006 described concerns and queries about the appellant’s exercise of the Power of Attorney.  It included a copy of a written report made by the Adult Guardian, following an investigation conducted under s 193 of the Guardianship and Administration Act 2000 (Qld).  The two matters investigated were the validity of the Enduring Power of Attorney, and what were described as “numerous withdrawals” made from Vivian Hodgens’ bank account, apparently by the appellant.  That included amounts totalling $50,923.66, withdrawn between 25 September 2000 and 31 May 2002.  The appellant did not produce any records or receipts regarding that expenditure to the Adult Guardian, and it appeared that he had not kept and preserved accurate records and accounts, as required by s 85 of the Powers of Attorney Act 1998 (Qld).  He told the investigator that a considerable amount of the money withdrawn had been spent on improving the house, which had been in a state of disrepair.  He had not paid a hospital account of his father’s of $1,076.70, resulting in action against Vivian Hodgens in the Magistrates Court of Queensland and a judgment for that sum, plus interest and costs.  No Notice to Defend had been filed; the Adult Guardian considered there had been unnecessary expense incurred and that there was significant need for an administrator to be appointed for Vivian Hodgens.

[6] On 11 July 2002 the Adult Guardian had suspended the appellant’s authority under the Enduring Power of Attorney for three months, exercising the powers given by s 195(2) of the Guardianship and Administration Act 2000 (Qld).  On 31 October 2002 the Guardianship and Administration Tribunal heard an application for the appointment of a guardian, or an administrator; and on 13 November 2002 that Tribunal ordered that the Public Trustee of Queensland be appointed Administrator for Vivian Hodgens for all financial matters.  It also revoked the Enduring Power of Attorney given to the appellant.  Presumably those orders were made under ss 82, 84, 115, and 155 of the Guardianship and Administration Act 2000 (Qld). 

[7] Correspondence then was exchanged between the Public Trustee and the appellant, in which the Public Trustee contended that the appellant had not responded to its (and the Adult Guardian’s) earlier requests for information regarding the $50,923.66.  The Public Trustee also suggested that the appellant had not co-operated regarding an inspection of the house in which he lived, owned by Vivian Hodgens.  The appellant’s position was that he was preoccupied with attending to his father’s health, and to legal matters.  That was essentially the material on which the respondents proposed to rely before the learned trial judge on 9 November 2006, when contending for the removing of the appellant as executor and the appointment of a trustee or administrator. 

Appointment of Trust Company Limited as administrator

[8] As events fell out, there was no contest on 9 November 2006 about the removal of Errol Hodgens as executor of the 1997 Will which, it was common ground, did revoke the Will dated 21 May 1992 and already admitted to probate.  Counsel for the appellant informed the learned judge that while the appellant was happy to continue as executor, he acknowledged there was a dispute between him and the other family members, who would like to have the Trust Company Limited appointed as administrator.  In answer to inquiries by the learned judge, the judge was told that the parties were agreed about that, albeit reluctantly on the part of the appellant.  Accordingly, order number 6 made on 17 November 2006, now appealed, read:

“Letters of Administration with the Will annexed of Vivian Thomas Hodgens formerly of Masonic Village, Emerald Street Kirwan, but late of Good Shepherd Nursing Home, University Drive, Douglas, Townsville, in the State of Queensland, deceased dated 1997 is granted to Trust Company Limited ABN 59 004 027 749.”

[9] Because the trial judge was told that issue was agreed, there was no cross-examination or contest in evidence about the removal of Errol Hodgens as executor.  He had not filed any affidavit material about how he spent the $50,923.66, and the only untested material before the judge was what the respondents had read.  The learned judge accordingly made no findings about Errol Hodgens’ capacity to carry out the role of executor, and it was therefore unnecessary for the judge to refer to the matters considered in Williams v Williams [2005] 1 Qd R 105; [2004] QSC 269 and Baldwin v Greenland [2007] 1 Qd R 117; [2006] QCA 293. 

[10]  The appellant was given leave on these appeals, to read an affidavit,[7] deposing to instructions he gave at the trial to his solicitor and counsel, in support of his contention on these appeals that his counsel’s agreement to the order appointing the administrator was contrary to those instructions.  The instructions, as revealed in annexure “Evth4” to an affidavit sworn on 31 January 2007 by the appellant,[8] advised that he accepted the appointment of an administrator, on the condition that his counsel’s and solicitor’s costs were paid from the estate.

[11]  The material Errol Hodgens read did assert that his counsel exceeded his instructions.  His counsel did succeed in conveying that Errol Hodgens reluctantly agreed to the administrator, because Errol Hodgens acknowledged that the respondents alleged that he owed the estate money, and in those circumstances the appointment of the Trust Company Limited was not opposed.  The appellant’s counsel then specified that what was in dispute was how the costs would be paid which the appellant had incurred in applying to revoke probate of the 1992 Will.  But counsel did not advise that the agreement to the Public Trustee as administrator was subject to the condition that the estate pays the appellant’s costs.  That was an important qualification.  The learned trial judge was vested the discretion to make orders as to costs, and that discretion could not be fettered about with conditions imposed when determining the very different issue of whether to grant Letters of Administration to the Trust Company Limited.  However, the learned judge did order, by order 7(b), that Errol Hodgens be entitled to recover from the estate his costs associated with proving the 1997 Will.  The judge added that those costs should be the ones which would have been incurred if the 1997 Will had been admitted to probate in the ordinary course of events.  The orders made (other than order No 7(a), the costs order against Mr Hodgens) were in general accord with Errol Hodgens’ instructions, and avoided a bitter dispute about the expenditure of his father’s money.  There is simply no basis at all on which that order can be overturned, on the material now relied on by Errol Hodgens.  He points also to the fact that the Trust Company Limited now does not want to act as administrator, but that change of heart does not mean Errol Hodgens – or the Trust Company – can appeal the order appointing it as administrator, to which it had given consent in writing.  Other steps are necessary, not an appeal.

[12]  The qualification in the costs order made in Errol Hodgens’ favour reflected the view taken by the learned trial judge about the events which had in fact unfolded after the death of Vivian Hodgens, and in and about attempts by some of his children, other than Errol Hodgens, to discover if there was a later Will than the 1992 one.  The appellant’s sister Danielle Hodgens, a legal practitioner, had written to a number of solicitors in Townsville on 28 June 2002, advising that both of her parents were in their 80s and in a nursing home in Townsville, and seeking advice as to whether those solicitors held Wills of either of her parents, or a Power of Attorney on behalf of either.  On 6 August 2003, after her father’s death, she wrote to the appellant.  She included with that letter a copy of the 1992 Will, and she advised that she intended to have solicitors obtain probate of, and administer, that Will.  She asked Errol Hodgens to advise within seven days whether he had any objections; and he responded in terms the learned judge accurately described as quite equivocal, and which did not reveal what was the fact, namely that the appellant knew of the 1997 Will given to him in an envelope by Vivian Hodgens in December 1997, and which envelope he had opened after his father died.

[13]  In August 2003 Errol Hodgens spoke with a solicitor instructed by Danielle Hodgens, and told that solicitor he held a later Will; the solicitor then wrote to Errol Hodgens on 28 August 2003, advising of an intention to apply to the Supreme Court for a grant of probate of the Will dated 21 May 1992, and advising that the solicitor wrote to confirm that Errol Hodgens did not hold a later Will.  The appellant responded in equally equivocal terms, informing the solicitor that he did not want to discuss matters relating to the deceased’s Will or associated matters until a headstone had been put in place, and once again not advising that he knew of and possessed a Will later than the 1992 one.

[14]  An application for probate of the 1992 Will was advertised, and the appellant did not respond to that; probate of that Will was granted by order made on 17 October 2003.  The appellant then filed his application on 31 October 2003 for an order revoking probate of the 1992 Will and granting probate of the 1997 Will, with him as executor.  It appears from the reasons for judgment of the learned trial judge given on 17 August 2006 that the three year delay before the matter came on for hearing was substantially the fault of the respondents, who took that long to accept that the 1997 Will was a valid Will. 

[15]  Mr N M Cooke QC, senior counsel for the appellant, contended on the appeal hearing that Errol Hodgens was applying under Uniform Civil Procedure Rules 1999 (Qld) r 895 for an order discharging the orders made on 17 November 2006.  The basis of that application was explained as being that counsel for Errol Hodgens had consented to an order replacing him as executor, contrary to the instructions given to that counsel, and accordingly the learned judge had removed Mr Hodgens as executor, by order, without considering whether the circumstances justified that order, if contested.  Additionally, Mr Cooke QC submitted that the Trust Company Limited, appointed by the learned judge as administrator with the Will annexed, had now made clear that it did not intend to accept that appointment.  After some argument, Mr Cooke was allowed to read an affidavit from Mr Hodgens, who was then cross-examined by telephone.  The substance of the evidence was that he had specifically instructed his counsel not to consent to his being replaced as executor, without it first being agreed that his barrister’s and solicitor’s costs would be paid by the estate.  The appeal was then adjourned to enable the respondents to file such affidavit evidence as they wished, in response.

[16]  The respondents filed an affidavit in December 2007, in which the solicitor acting for them deposed to a conversation with the appellant’s trial counsel, in which the latter, described originally being instructed to consent to the trustee company being appointed only if the appellants’ costs were paid out of the estate. The solicitor swore, counsel said, he was later given instructions to assent to the appointment and to argue the question of costs. The appellant has objected to this affidavit as hearsay. That is a valid objection and this court cannot resolve on the material, whether the appellant’s counsel exceeded or followed his instructions. That is an unsatisfactory result, but the reported attitude of the Trust Company Limited means that the matter will go back to the trial judge, for further orders and directions.  

[17]  Discussion about the adjournment brought to light a matter not previously revealed, namely that neither party had particularly endeavoured to comply with the requirements of UCPR r 633.  That provides that in contested proceedings:

“The plaintiff must give notice of the proceeding to any person who has a beneficial interest in the estate to which the procedure relates.”  

UCPR r 629 defines a contested proceeding, to mean:

“(a)A claim in which the court is asked to pronounce for or against the validity of a Will; or

(b) A claim brought in opposition to an application for a grant.”

[18]  Errol Hodgens brought a contested proceeding, because he asked the court to pronounce against the validity of the 1992 Will and in favour of the 1997 Will with himself as executor.  The respondents brought a contested proceeding because they opposed Errol Hodgens’ application for a grant of probate to him of the 1997 Will.  The parties were asked for their written submissions on that, and the appellant contended that the respondents had in fact never at any stage challenged the validity of the 1997 Will.  If UCPR r 633 did apply, and if Mr Hodgens’ application was to be regarded as a “contested proceeding”, there had been substantial compliance with the rule by the appellant.  The potential beneficiary Reginald Hodgens had sworn an affidavit on 5 May 2007, the potential beneficiary Ronald Hodgens was a respondent, and so too was the potential beneficiary Yolande Krebs; an affidavit had been sworn by the potential beneficiary Rosemunde Hodgens on 12 July 2007; the potential beneficiary Danielle Hodgens had sworn an affidavit in the proceedings; Errol Hodgens was the appellant, and the only remaining potential beneficiary, Ron-Ron Hodgens, not named in either Will, only had an interest on an intestacy. 

[19]  The respondents likewise submitted that the affidavits filed in this Court show that the person to whom notice should have been given were all well aware of the nature of the application and of the cross-application, and in the circumstances no harm or mischief had been caused by reason of the failure of the appellants to give the required notice.  Both parties urged the court to apply UCPR r 5(2), and not delay the matter any further because of a failure to comply with UCPR r 633.  That seems to be an appropriate course of action.

[20]  The respondents wanted to adduce evidence to challenge that given by Errol Hodgens in his affidavit and oral evidence, presumably to establish that his counsel did act on Mr Hodgens’ instructions.  The appellant’s case on the appeal was that the learned judge had acted on the supposed consent of the parties, without turning his mind to the question of whether there were any special circumstances to justify passing over the nominated executor and making a grant to a third party.  Accordingly, the appellant argued, the discretion the judge had to exercise was either not exercised, or it miscarried. 

[21]  Because of the difficulty, administratively, in reconstituting the court to hear further evidence, little point is served in doing so if that evidence could make no real difference to the outcome.  The fact is that counsel for Mr Hodgens did tell the learned judge that the parties had agreed to the Trust Company of Australia, and counsel told the court that:

“Our client has taken the view that if you – if you don’t want me to do it then have who you like.”[9]

[22]  Telling that to the learned judge described a specific consent by the nominated executor to his own removal, and the judge had been informed of the grounds of dispute between Errol Hodgens and the other potential beneficiaries.  The learned judge was not acting on a “supposed consent” but on a consent asserted as existing.  That was not an error, and no good purpose would be achieved by hearing contested evidence as to the appellant’s instructions to his counsel.  That counsel conducted the case in a particular way, by which Mr Hodgens is bound.  

[23]  In Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27 the joint judgment of the High Court reads, at p 243:

“It is not a case where a compromise has been agreed upon by counsel acting only in pursuance of his apparent or implied authority from his client but, owing to a mistake or misapprehension, in opposition to his client’s instructions or in excess of some limitation that has been expressly placed on his authority.  In such a case, at all events until the judgment or order embodying the compromise has been perfected, an authority exists in the courts to refuse to give effect to or act upon the compromise and perhaps to set it aside.” (Citations omitted).

[24]  The appellant’s case here would be at best an example of that situation described in that joint judgment, but there was no suggestion that in this matter the judgment or order embodying the asserted compromise or consent had not been perfected.  There accordingly existed no power in the court to refuse to act upon the consent described to the learned judge by counsel for Errol Hodgens.  On this appeal, Mr Cooke QC submitted that the circumstances did not establish facts giving rise to a discretionary power in the learned trial judge to pass over an executor, such as Mr Hodgens, and the supposed consent of the parties did not authorise making that order where the judge had not been satisfied that the special circumstances exist, which would otherwise do so.  But the judge was told there was a consent, and the order asked for was not opposed.  Those circumstances do not show an error by the learned judge.

The costs order against Errol Hodgens

[25]  Order No 7(a) made on 17 November 2006, and which the appellant wants to challenge, was that he should pay the respondents’ costs thrown away of their proving the Will of 21 May 1992.  The learned trial judge had concluded that the responsibility fell heavily upon the appellant for what turned out to be the unnecessary step of admitting the first Will to probate.  That was because the appellant had replied equivocally to both Danielle Hodgens and to the solicitor, had not produced the late Will in response to an invitation to do so, and had not responded to the advertised application for probate.  The judge considered that the appellant’s inaction was largely responsible for the need to make the application to revoke the first grant of probate.  That conclusion were open to the learned judge on the facts, and on those facts the judge exercised the discretion to order the appellant to pay the respondents’ wasted costs in proving the 1992 Will.  The conduct of Errol Hodgens had made it reasonable for the respondents to take the unnecessary and wasteful step they took, and the costs order reflected a principle established in Bullock v London General Omnibus Co [1907] 1 KB 264 and applied in Gould v Vaggelas (1984) 157 CLR 215; [1984] HCA 68.

[26]  The appellant sought leave on 24 November 2006 from the learned judge under s 253 of the Supreme Court Act 1995 (Qld), to appeal the costs order.  The learned judge referred to authority (Morrison v Hudson and Allianz Australia Insurance Limited [2006] 2 Qd R 465; [2006] QCA 170), and to the long standing policy that there not be appeals on the issue of costs unless good reason was shown for the grant of leave.  The judge observed that many of the appellant’s arguments involved a re-canvassing of the facts, and a challenge to some of the findings earlier made by the judge; the learned judge correctly held that that could not constitute the basis for a grant of leave.  The judge observed that the order for costs made earlier was based upon the discretionary power of the court in the particular circumstances of that case, and it did not raise any question of principle or any matter that would justify a grant of leave. 

[27]  The judgment refusing leave on 24 November 2006 referred to submissions made by the appellant based on UCPR r 637, and an argument that the respondents could have applied – before seeking probate of the 1992 Will – to the Registrar for a subpoena directed to Errol Hodgens, requiring him to bring into the Registry any Will in his possession.  However, no argument based on that had been put before the learned judge on the original application, to suggest that that was a course open to the respondents which they ought reasonably to have taken and which bore upon the question of costs.  The judge referred to the fact that UCPR r 637 had been raised by the learned judge during submissions of counsel[10], and observed that the respondents had not possessed sufficient information to enable them to identify any document which could be the subject of such a subpoena.  Apart from that problem, the simple point was that no argument based on UCPR r 637 had been suggested earlier as relevant to the exercise of the discretion on costs.  I observe that the submission attempts to gain an advantage from the fact that the appellant did not disclose or volunteer the existence of the 1997 Will until probate had been obtained of the 1992 one, and treats the issue of a subpoena as equivalent to a request for discovery or disclosure of documents. 

[28]  The appellant has not shown any grounds for overturning the decision not to give leave to appeal the costs order.  Both were a proper exercise of the learned judge’s general discretion.  I would dismiss both appeals.

[29]  I would order:

● That both appeals be dismissed;

● That the appellant pay the respondents’ costs, agreed or assessed on the standard basis, of and incidental to both appeals.

[30]  WILSON J: I agree with the reasons for judgment of Jerrard JA and with the orders His Honour proposes.

[31]  LYONS J: I have had the advantage of reading the reasons of Jerrard JA. I agree with the reasons and with the orders proposed by Jerrard JA.