Greer v Greer[2021] QCA 174

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  Amongst other questions which arose in the proceeding in the trial division was the question of whether a deceased man had testamentary capacity to make the will which he made shortly before his death.  The appellant (who was the defendant in the proceeding in the trial division) was the executor named in that will.

2. [2]
   Two questions were set down for separate determination: first, whether the testator had testamentary capacity at the time of execution of the will; and second, whether the will should be admitted to probate in solemn form.
3. [3]
   The primary judge found that the testator did not have testamentary capacity at the time he executed the will and made a declaration accordingly.  Her Honour reserved the questions of the costs of and incidental to the hearing to the Court which finally determined the remaining issues in the proceeding.
4. [4]
   For reasons expressed in Greer v Greer [2021] QCA 143, the Court: dismissed an appeal from the decision of the primary judge; directed the parties to file and serve written submissions on costs; and directed that it would determine on the papers any issues which arose in relation to costs.
5. [5]
   The appellant accepted that he should be required to pay the respondent’s costs of the appeal.  The result was that the only issue in contest on costs was whether the Court should accede to the respondent’s submission that costs should be assessed on the indemnity basis.
6. [6]
   The respondent submitted that five considerations supported such an order:

   1. (a)
      First, the amount at stake in the proceeding was relatively small.
   2. (b)
      Second, the appellant failed to accept offers of compromise made before the trial took place before the primary judge.
   3. (c)
      Third, the appeal had been pursued for an ulterior purpose.
   4. (d)
      Fourth, the “manifest weakness” of the appellant’s case before the primary judge.
   5. (e)
      Fifth, the “manifest weakness” of the appellant’s case before this Court.
7. [7]
   In this case the first two considerations could not justify the order sought.  They may be disregarded.  It is necessary only to consider whether the third, fourth and fifth considerations can be made good and, if so, whether they justify the order sought.
8. [8]
   Amongst the circumstances in which indemnity costs orders may be justified are cases in which the Court concludes a proceeding has been commenced or continued for some ulterior motive, or the Court forms such an adverse view of the merits of the case advanced that it concludes that the case must have been advanced in wilful disregard of the known facts or clearly established law, or should never have been run, or has resulted in the undue prolongation of a case by the making of groundless contentions: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234; Rouse v Shepherd (No 2) (1994) 35 NSWLR 277 at 279–280; Martinovic v Chief Executive, Queensland Transport [2005] 1 Qd R 502 at 510-511 [22]; Mango Boulevard Pty Ltd v Spencer [2008] QCA 392 at [8]; LPD Holdings (Aust) Pty Ltd v Phillips, Hickey and Toigo [2013] QCA 305 at [21]–[22]; Legal Services Commissioner v Bone [2014] QCA 179 at [67]–[70]; Courtney v Chalfen [2021] QCA 25 at [14].

9. [9]
   Accordingly, if the submission that the appeal was pursued for an ulterior purpose could have been made good, that might well have supported an indemnity costs order.  The respondent contended that it could be inferred that the appeal was prosecuted for an ulterior purpose from a consideration of the relatively small size of the estate and the economies of pursuing an appeal with a silk and junior.  But no such inference arises from those circumstances.

10. [10]
    Similarly, if the merits of the case advanced on appeal warranted the conclusion that the case on appeal must have been advanced in wilful disregard of the known facts or clearly established law, or should never have been run, or has resulted in the undue prolongation of a case by the making of groundless contentions, that might well have supported an indemnity costs order.  But no such adverse qualitative evaluation could be made of the case advanced on appeal.  The reasons for judgment dismissing the appeal reveal that the case on appeal failed, but mere failure does not justify an indemnity costs order.  The respondent’s submission to the contrary constitutes an overreach.  No occasion arises to express a view about the merits of the case advanced before the primary judge.
11. [11]
    The order of the Court is that the appellant should pay the respondent’s costs of the appeal, to be assessed on the standard basis.