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- Notable Unreported Decision
Re Marshall (No 2) QSC 130
SUPREME COURT OF QUEENSLAND
Re Marshall (No 2)  QSC 130
BRENDAN ROBERT ANDREW STEWART
SC 30 of 2020
Supreme Court at Cairns
22 May 2020
On the papers
The applicant’s costs of and incidental to the application be paid from the estate of the deceased on the indemnity basis.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – ISSUES AND COUNTERCLAIMS – FAILURE IN PORTION OF CASE – where the applicant brought an application for letters of administration with an informal will attached and consequential orders – where the court dismissed the dispensing application under s 18 Succession Act 1981 (Qld) – where the court nevertheless granted letters of administration on intestacy – whether the applicant is entitled to his costs on an indemnity basis paid out of the estate
Uniform Civil Procedure Rules 1999 (Qld), r 681
Re Buckton; Buckton v Buckton  2 Ch 406, applied
Alborn & Ors v Stephens & Ors  QCA 58, applied
L Neil for the applicant
Maurice Blackburn for the applicant
- On 12 May 2020 I made orders granting the applicant letters of administration upon intestacy and dismissing the balance of his application before me. The applicant had actually sought a grant of letters of administration with an alleged will as distinct from grant of letters of administration on intestacy. The substantial component of argument related to another aspect of the application which sought to satisfy the Court pursuant to s 18 Succession Act 1981 (Qld) (“the Act”) that a document signed by Ms Marshall some years before her death was intended to form her will. In the event that component of the application was successful, consequential orders were also sought relating to the proper construction of that alleged will. These components of the application were all unsuccessful. The applicant nonetheless seeks an order that the estate should pay the whole of his costs of the application on the indemnity basis.
- It is clear the applicant should have that part of his costs attributable to the component of the application by which letters of administration were sought. Someone has to administer the estate, whether pursuant to a will or in intestacy, and an order had to be sought and made about that. The real issue is whether the applicant should have the whole of his costs.
- Rule 681 Uniform Civil Procedure Rules 1999 (Qld) provides that costs are in the discretion of the Court but follow the event unless the Court otherwise orders. It is well established that where a party has only been partly successful the Court may award that party’s costs in whole or in part, depending on the circumstances of the case. As to those circumstances, Muir JA relevantly observed in Alborn v Stephens:
“The ‘event’ is not to be determined merely by reference to the judgment or order obtained by the plaintiff or appellant, but is to be determined by reference to the ‘events or issues, if more than one, arising in the proceedings’. However, a party which has not been entirely successful is not inevitably or even, perhaps, normally deprived of some of its costs.”
- In a case like the present, the question whether costs should be awarded in whole or in part ought not be confined merely to the degree of success in the orders obtained or in respect of the events or issues arising. That is because the case involves an estate of a deceased person who left the fate of her estate in a state of uncertainty regarding whether a document she described as her last will and testament formed her will and if so what it meant. It was inevitable that whoever was to be entrusted with administering the estate would need to resolve that uncertainty and it was proper that it be resolved by a court. The nature of the uncertainty being known at the time of the application for letters of administration, also made it inevitable that it should be resolved as part of that application. While the applicant argued for a particular outcome in the determination of the issues arising from the uncertainty, it was in the interests of the estate, and whomsoever its beneficiaries were to be, that the issues be determined.
- The applicant’s position was at worst akin to that of an applicant in the second category of litigant discussed in Re Buckton; Buckton v Buckton, namely an application made by beneficiaries “by reason of some difficulty of construction, or administration, which would have justified an application by the trustees, and it is not made by them only because, for some reason or other, a different course has been deemed more convenient”. In Re Buckton, Kekewich J observed that category was no different in substance from the first category described by his Lordship, namely trustees of a will “who ask the Court to construe the instrument of trust for their guidance, and in order to ascertain the interests of the beneficiaries, or else ask to have some question determined which has arisen in the administration of the trusts”. His Lordship observed of that category:
“In cases of this character I regard the costs of all parties as necessarily incurred for the benefit of the estate, and direct them to be taxed as between solicitor and client and paid out of the estate”.
- Those observations apply here. It follows the applicant should have his costs of the application in full and that the estate should bear those costs on the indemnity basis.
- I order the applicant’s costs of and incidental to the application be paid from the estate of the deceased on the indemnity basis.
Re Marshall  QSC 109.
 QCA 58, .
 2 Ch 406, 414–5, followed and cited with approval in various Australian cases including Sons of Gwalia Ltd v Margaretic (2006) 232 ALR 119; Warton v Yeo (2015) 15 ASTLR 462, 479; Brownell v Robinson (No 2)  TASSC 12, ; Romano v Ladewig  QCA 530, .
 2 Ch 406, 414.
 2 Ch 406, 414.
- Published Case Name:
Re Marshall (No 2)
- Shortened Case Name:
Re Marshall (No 2)
 QSC 130
22 May 2020
- White Star Case: