Lindsay v McGrath
[2015] QCA 249
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- Unreported Judgment
- Appeal Determined (QCA)
- Lindsay v McGrath[2015] QCA 249
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Lindsay v McGrath[2015] QCA 249
Lindsay v McGrath[2015] QCA 249
CITATION: | Lindsay v McGrath [2015] QCA 249 |
PARTIES: | GEOFFREY DAVID LINDSAY |
FILE NO/S: | Appeal No 9012 of 2014 SC No 5011 of 2013 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal – Further Orders |
ORIGINATING COURT: | Supreme Court at Brisbane – Unreported, 4 September 2014 |
DELIVERED ON: | 1 December 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Gotterson and Philippides JA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: |
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CATCHWORDS: | PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – where the appellant failed at first instance – where the appellant’s appeal was dismissed – where the parties were given leave to make submissions as to costs – whether the appellant should pay the respondent’s costs of the appeal and whether the appellant’s costs should be paid out of the deceased’s estate |
COUNSEL: | No appearance by the appellant, the appellant’s submissions were heard on the papers No appearance by the respondent, the respondent’s submissions were heard on the papers |
SOLICITORS: | Hall Payne Lawyers for the appellant Weldon, Zande & Reddy for the respondent |
[1] GOTTERSON JA: I agree with the orders proposed by Boddice J, and with his Honour’s reasons for them.
[2] PHILIPPIDES JA: Given that the appellant’s appeal was dismissed by the majority of the Court, I agree with the orders proposed by Boddice J.
[3] BODDICE J: On 27 October 2015, the appellant’s appeal was dismissed. The parties were given leave to make submissions on costs. At issue is whether the appellant should pay the respondent’s costs of the appeal and whether the appellant’s costs should be paid out of the deceased’s estate.
Submissions
[4] The appellant submits that notwithstanding his lack of success, the appeal was brought reasonably, in his capacity as personal representative of the deceased estate. Whilst he had a personal interest in the outcome of the appeal, that fact does not constitute a sufficient basis for the Court to depart from the prima facie position that whilst he ought to pay the respondent’s costs of the appeal on a standard basis, the appellant’s costs of the appeal should be paid from the estate, on an indemnity basis. Alternatively, the appellant submits there should be no order as to costs in all the circumstances.
[5] The respondent submits that whilst it may have been reasonable for the appellant to bring the initial application, it was not reasonable for the appellant to appeal the decision at first instance. The appeal was not in the interests of the estate. It was in his own personal interests as principal beneficiary under the informal documents sought to be established as a valid Will. The estate should not bear any costs of the appellant’s unsuccessful attempt to re-litigate the same issue. The appellant should pay the respondent’s costs of the appeal, on either the indemnity or standard basis, with the appellant having no right of reimbursement out of the estate for his costs of the appeal.
Discussion
[6] Generally, a party bringing an application as administrator of the estate of a deceased person would be entitled to recover the costs of that application from the estate, on an indemnity basis. That was the approach adopted to the costs of the application at first instance. However, it does not follow that that principle should operate in relation to any subsequent unsuccessful appeal.
[7] Having failed at first instance, and being given the benefit of an order that his and the respondent’s costs of and incidental to the application be paid out of the deceased estate on an indemnity basis, there is no good reason why the estate should bear the costs of the unsuccessful appeal. Such an order would have the effect of the successful respondent meeting those costs out of her share of the intestacy.
[8] The successful respondent ought to receive her costs of the appeal. Those costs should not be borne by the estate. They should be borne by the appellant personally. However, there is nothing in the appellant’s conduct which would justify an assessment of those costs on an indemnity basis. Those costs should be assessed on a standard basis.
[9] The pursuit of the appeal was only for the benefit of the appellant personally. There was no benefit to the estate. I would decline, in the exercise of my discretion, to make an order that the appellant’s costs of the appeal be paid by the estate. The appellant having failed on appeal, it is appropriate that the appellant also meet his own costs of appeal personally.
Orders
[10] I would order:
1.The appellant pay the respondent’s costs of the appeal, to be assessed on a standard basis.
2.The appellant bear his own costs of the appeal personally, with no right of reimbursement out of the estate of the deceased.