Lorenz v McGreevy & Anor (No. 2)
[2022] QDC 226
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- Unreported Judgment
- Lorenz v McGreevy & Anor (No. 2)[2022] QDC 226
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Lorenz v McGreevy & Anor (No. 2)[2022] QDC 226
Lorenz v McGreevy & Anor (No. 2)[2022] QDC 226
DISTRICT COURT OF QUEENSLAND
CITATION: | Lorenz v McGreevy & Anor (No. 2) [2022] QDC 226 |
PARTIES: | FIONA FAYE LORENZ AS EXECUTOR OF THE ESTATE OF BADEN MARK JUST (Plaintiff) v BRENDA MAE MCGREEVY (First Defendant) and PETER MCGREEVY (Second Defendant) |
FILE NO: | D42/19 |
DIVISION: | Civil |
PROCEEDING: | Application for a Direction |
ORIGINATING COURT: | District Court at Toowoomba |
DELIVERED ON: | 11 October 2022 |
DELIVERED AT: | District Court at Kingaroy |
HEARING DATE: | Written submissions from both parties |
JUDGE: | Loury KC DCJ |
ORDER: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – COSTS OUT OF FUND OR PROPERTY – BASIS ON WHICH COSTS ORDERED – where application for Beddoe order dismissed for want of jurisdiction – whether costs should be reserved – whether the defendants should be awarded costs on the indemnity basis or otherwise on the standard basis |
LEGISLATION: | Uniform Civil Procedure Rules 1999 (Qld) r 700 |
COUNSEL: | P Travers for the plaintiff A Fraser for the defendants |
SOLICITORS: | Edgar & Wood Solicitors for the plaintiff Murdoch Lawyers for the defendants |
- [1]On 21 September 2022 I ordered that the plaintiff’s application for a Beddoe order be dismissed on the basis that I did not have jurisdiction to make such an order.[1]
- [2]The plaintiff submits that with respect to the issue of costs that the parties’ costs of the application should be reserved. The defendants submit that they ought to be awarded their costs on the indemnity basis or otherwise on the standard basis, and that the plaintiff ought not be entitled to indemnity out of the estate.
- [3]The plaintiff brought the application for a Beddoe order at the urging of the defendants.[2] That was at a time after the defendants had refused to engage in any mediation.[3] That refusal continued until I made orders on 21 September 2022 (including orders for the parties to attend mediation) after I had delivered judgment in the application for a Beddoe order. It seemed to me from submissions made on that occasion that there then remained a reluctance on the part of the defendants to participate in mediation.
- [4]The position of the defendants in refusing to engage in a mediation necessitated the making of the application for the Beddoe order by the plaintiff in order to progress the matter. The defendants consented to an order by the Deputy Registrar that any Beddoe application be filed with the Court (I would infer, a reference to the District Court) on or before 24 June 2022. Whilst the defendants did foreshadow, in correspondence, that there was an issue that arose with respect to the jurisdiction of this court to make the Beddoe order, in the absence of any authority clearly establishing that lack of jurisdiction, I do not consider that the bringing of the application in those circumstances was unwarranted and/or unreasonable.
- [5]The plaintiff further argues that the defendants were not parties to the application and were not required to appear or incur the costs that they did. Whilst the defendants neither consented nor opposed the court exercising jurisdiction, the defendants did oppose the making of the order. The defendants did correspond with the plaintiff in advance of the hearing to the effect that there was an issue as to jurisdiction and that irrespective of the outcome, there was no basis for an adverse costs order to be sought against them. That correspondence invited the plaintiffs to consent to orders that the application be dismissed, that such an application be filed in the Supreme Court and that the plaintiff pay the defendants’ costs in responding to the application and not be entitled to indemnity from the estate. Whilst the plaintiff did seek an adverse costs order against the defendants, at the hearing the plaintiff did not pursue that order but rather sought that costs be reserved. It is fair to say however, that the defendants had to attend in order to avoid any potential adverse costs order. The First Defendant was entitled as a beneficiary of the estate to oppose the making of the order. As costs ordinarily follow the event, the plaintiff ought to pay the defendants’ costs on the standard basis.
- [6]The defendants submit that the plaintiff ought not be permitted to be indemnified out of the estate fund in respect of her own costs of the application or in the payment of the defendants’ costs. Rule 700 of the Uniform Civil Procedure Rules 1999 provides that a party who sues as trustee (which extends to an executor) is entitled to indemnity out of the trust estate for expenses properly incurred in the administration of the estate.
- [7]My impression of the correspondence and from submissions made before me on 21 September 2022 is that the defendants continue to appear reluctant to engage in a mediation process. The application was reasonable and necessary in order to progress the matter given that refusal. The plaintiff is entitled to indemnity out of the trust estate.
- [8]My orders are:
- (1)That the plaintiff pay the defendants’ costs of the application on the standard basis.