Nesbit v Public Trustee of Queensland (No. 2)
[2003] QDC 370
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- Unreported Judgment
- Nesbit v Public Trustee of Queensland (No. 2)[2003] QDC 370
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Nesbit v Public Trustee of Queensland (No. 2)[2003] QDC 370
Nesbit v Public Trustee of Queensland (No. 2)[2003] QDC 370
![Nesbit v Public Trustee of Queensland (No. 2) [2003] QDC 370](/judgmentview/image?name=315721.001.png&id=315721)
DISTRICT COURT OF QUEENSLAND
CITATION: | Nesbit v Public Trustee of Queensland; Estate Ian Robert Nesbit (Dec’d)( No. 2) [2003] QDC 370 |
PARTIES: | MARITA RUBY EVELYN NESBIT Applicant v PUBLIC TRUSTEE OF Queensland (as Administrator of the Estate of Ian Robert Nesbit (Dec’d) Respondent |
FILE NO/S: | Southport D829/2001 |
DIVISION: | Civil |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | District Court of Queensland at Southport |
DELIVERED ON: | 10 September 2003 |
DELIVERED AT: | Southport |
HEARING DATE: | 11 July 2003 |
JUDGE: | Alan Wilson SC, DCJ |
ORDER: | Order that the costs of the applicant and respondent be paid out of the Estate of Ian Robert Nesbit, deceased on an indemnity basis |
CATCHWORDS: | COSTS – FAMILY PROVISION – application by de facto spouse – application failed – whether failed applicant’s costs ought to be paid out of the estate of the deceased Succession Act 1981 Uniform Civil Procedure Rules, r 689 Cases considered: re Emmerich, unreported (District Court Brisbane, 21/94 8 March 1994) Singer v Berghouse (1993) 67 ALJR 708 White v Barron (1980) 144 CLR 431 |
COUNSEL: | Mr R Peterson for the Applicant Mr B Nickel for the Respondent |
SOLICITORS: | Collas Moro Ross for the Applicant Official Solicitor to the Public Trustee of Queensland, Respondent |
- [1]This was an application for Family Provision by a de facto spouse. The application was heard on 11 July 2003 and, pursuant to an Order and Reasons made and delivered on 19 August 2003, the application was dismissed. The parties were allowed further time to make submissions about costs.
- [2]Under UCPR r 689 costs of a proceeding are in the discretion of the court but follow the event, unless the court considers some other order is more appropriate.
- [3]In Singer v Berghouse (1993) 67 ALJR 708 Gaudron J said at 709:
Family provision cases stand apart from cases in which costs follow the event. Leaving aside cases under the Act which, in s 33 makes special provision in that regard, costs in Family Provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applicants, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant’s financial position: see Dickey, Family Provision After Death (1992), pp184-185; as to the position in the United Kingdom see Ross Martyn, Family Provision: Law in Practice (1985), pp 77-78. And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate.
- [4]Mr Nesbit died on 17 February 2001. The applicant began this action on 14 August 2001 at which time the property they had owned in equal shares as tenants-in-common had a value of about $220,000, of which her share was worth, then, $110,000. By the time of trial, however, that value had increased dramatically so her share was worth over $200,000. At paragraph [40] of my Reasons delivered 19 August 2003 I said:
[40] Her asset position has certainly been improved by the dramatic increase in real estate values since Mr Nesbit’s death, but that is a matter which falls into the accounting of the “jurisdictional question”. With the present value of her interest in the home, and her investments, she appears to have sufficient to meet the contingencies the future might hold. She can stay in her home, with assets and income which appear to meet the likely cost of doing so. She could see her interest and purchase a smaller residence, or a unit in a facility, and have funds to spare. (My emphasis).
- [5]The limited evidence presented on the applicant’s behalf at the trial indicated that a unit in an aged care facility, with either one or two bedrooms, would cost between about $125,000 and $180,000. No evidence was presented about the cost of accommodation of that kind at the date of death but, on any view, the applicant’s financial position at that time and when she commenced proceedings was markedly less advantageous than that which applied at the time of trial; and, arguably, without the significant increase in the value of the home she had shared with the deceased her application would have had better prospects of success.
- [6]It is argued on her behalf that other factors, too, warrant a costs order notwithstanding the failure of her claim. She was certainly an eligible applicant, and her relationship with the deceased was a long one. It was, as I found, in all respects the same as that of a lawful widow. It is true, too, that her present financial resources would be significantly denuded if she was forced to pay costs, for the applicant and/or herself. An order to either effect would carry the risk of eroding her future security.
- [7]Disappointingly, information about each party’s costs was not provided in any detail, despite its obvious importance. On the material provided, and doing the best I can with it, it appears the estate contained about $83,000 in cash and investments at the time of trial from which the Public Trustee is entitled to take its costs and commission of about $33,500, and legacies of $20,000 were to be paid. Those legacies were made up of gifts of $6,000 to the deceased’s son Peter, $11,000 to the applicant, and $1,000 to each of three of the deceased’s grandchildren. The applicant’s own costs amounted, I was told, to $29,400. The residue was to pass to Peter and another son, David, in equal shares.
- [8]The deceased’s adult sons will, ultimately, receive benefit from the estate when the home is sold. The applicant’s costs could be paid from the funds in the estate and, even if the estimates given at trial are exceeded, it is reasonable to assume the excess will not be significant. At worst, her costs and the Public Trustee’s might have the effect, ultimately, of reducing the legacies, but the principal legacy is to the applicant herself. The residuary gifts would also, of course, be extinguished and the sons’ benefits postponed to the end of the applicant’s life interest in the home.
- [9]While an order for payment of the costs of a failed applicant would be unusual Hoath DCJ was apparently persuaded to make an order of that kind, albeit at an early stage in the action where, it was apparent, an applicant in a de facto relationship would fail for a technical reason: re Emmerich, unreported (District Court Brisbane, 21/94 8 March 1994).
- [10]Where an applicant can show that, at the time the claim was commenced she had at least an arguable case and, as here, the claim was ultimately dismissed some considerable time later for reasons attributable, in a significant way, to a matter beyond her control (the dramatic increase in real estate values on the Gold Coast in that period); and, the applicant would suffer some hardship if she was ordered to pay costs, or had to bear her own, the distinction referred to by Gaudron J seems to me to apply. This is, ultimately, a benign jurisdiction in the sense that the court is placed in the position of the deceased, with an ongoing obligation to be concerned for the wellbeing of those who survive him, and to whom he owed a strong moral duty.
- [11]While it might be said a prudent applicant would not have proceeded to trial in the face of her improving financial circumstances, I do not think that tells strongly against Mrs Nesbit. As my lengthy Reasons for judgment showed, her claim was not without merit. Nor am I persuaded that r 689 should be construed, in an application of this kind, to mean that she must establish an overwhelming case for some other order before there can be any variation from the usual rule. As Gaudron J said, costs in Family Provision cases depend upon the overall justice of the case and, here, that dictates an order which does not cause Mrs Nesbit hardship.
- [12]The circumstances of the other beneficiaries are also of course material. Any order which does not require the applicant to pay her own, and the estate’s costs will probably deprive them of immediate benefit from their father’s estate but concern for that outcome has to be balanced against the security of the applicant who is much older, and more vulnerable to economic adversity in the particular sense that, unlike them, she has no capacity to improve her position.
- [13]The combined circumstances of an application not without merit but, ultimately, refused for reasons not necessarily foreseeable when proceedings commenced, an elderly applicant with a strong moral claim whose financial position would be jeopardised by an adverse costs order, other claimants who have better resources for their own support and who will, later, receive substantial benefits, and the size and nature of the remaining estate dictate an order which goes as far as necessary to protect the applicant in her declining years.
- [14]For these reasons I am persuaded the costs of all parties should be paid from the estate, on an indemnity basis.