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Sullivan v Greig [No 2][2023] QSC 119

Sullivan v Greig [No 2][2023] QSC 119

SUPREME COURT OF QUEENSLAND

CITATION:

Sullivan v Greig (No 2) [2023] QSC 119

PARTIES:

LINDA ROSE SULLIVAN

(applicant)

v

VALERIE GREIG

(respondent)

FILE NO/S:

BS No 14749 of 2021

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Williams J

ORDER:

  1. THE COURT ORDERS THAT:
  2. Save as ordered by Justice Bradley on 1 November 2022, the applicant pay the respondent’s costs of the proceeding:
  1. (a)
    on the standard basis from 10 December 2021 until 22 July 2022; and
  2. (b)
    on the indemnity basis after 22 July 2022.

CATCHWORDS:

SUCCESSION PROBATE AND LETTERS OF ADMINISTRATION COSTS GENERAL PRINCIPLES where the respondent was wholly successful at trial – whether the ordinary cost rules apply as opposed to any exception that may apply in the probate context

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS COSTS OFFERS OF COMPROMISE, PAYMENT INTO COURT AND SETTLEMENTS INFORMAL OFFERS AND CALDERBANK OFFERS GENERALLY where the respondent was wholly successful at trial where the respondent made two Calderbank offers which were rejected by the plaintiff – whether the refusal of the first Calderbank offer was unreasonable – whether costs should be paid on a standard or indemnity basis

Uniform Civil Procedure Rules 1999 (Qld), r 681, r 700A

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Fielder v Burgess [2014] SASC 98

LPD Holdings (Aust) Pty Ltd & Anor v Phillips, Hickey and Toigo & Ors [2013] QCA 305

Outram v Public Trustee of Queensland [2020] QSC 159

Roche v Roche & Another (No 2) [2017] SASC 75

S.H.A Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) [2020] QSC 323

COUNSEL:

Submissions prepared by the applicant in person

Submissions prepared by R T Whiteford for the respondent

SOLICITORS:

The applicant in person

Shine Lawyers for the respondent

  1. [1]
    On 10 May 2023 the following orders were made:
  1. “THE COURT ORDERS THAT:
  1. 1.
    The Court pronounces for the full force and validity of the Will of the deceased dated 15 November 2021.
  1. 2.
    Subject to the formal requirements of the Registrar, Letters of Administration of the deceased’s estate with the Will dated 15 November 2021 be granted to the respondent.
  1. FURTHER, THE COURT DIRECTS THAT:
  1. 1.
    The parties file written submissions of no more than 3 pages in respect of costs within 7 days of today.”
  1. [2]
    Both the applicant and the respondent have filed written submissions as to costs and each party has also filed and served an affidavit.
  1. [3]
    These reasons use the defined terms from the reasons for judgment,[1] unless identified to the contrary.
  1. [4]
    The respondent was wholly successful at the trial. Whilst there was a sufficient basis to require the respondent to prove the Will in solemn form, the respondent proved on the balance of probabilities that the document purporting to be the Will was signed by the deceased having testamentary capacity.
  1. [5]
    In order to determine the appropriate costs order in these circumstances, it is necessary to consider the applicable principles.
  1. Legal principles in respect of costs
  1. [6]
    Rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provides that costs of a proceeding are in the discretion of the Court. However, usually costs follow the event unless the Court orders otherwise.
  1. [7]
    In the context of probate matters, r 700A is also relevant. Rule 700A provides as follows:

700AEstates of deceased persons and trusts

  1. (1)
    This rule applies to—
  1. (a)
    a proceeding under the Succession Act 1981, part 4; or
  1. (b)
    another proceeding relating to an interest in property under a will or trust.
  1. (2)
    Without limiting the court’s discretion under these rules to make an order about costs in relation to all or part of the proceeding, the court may, in determining an order for costs, take into account the following matters—
  1. (a)
    the value of the property the subject of the proceeding and, in particular, the value of the property about which there is a disputed entitlement;
  1. (b)
    whether costs have been increased because of any one or more of the following—
  1. (i)
    noncompliance with these rules;
  1. (ii)
    noncompliance with a practice direction;
  1. (iii)
    the litigation of unmeritorious issues;
  1. (iv)
    failuretomake,promptlyoratall, appropriate concessions or admissions;
  1. (v)
    giving unwarranted attention to minor or peripheral issues;
  1. (c)
    an offer of settlement made by a party to the proceeding.”
  1. [8]
    The respondent also relies upon the decisions of Roche v Roche & Another (No 2)[2] and Fielder v Burgess[3]in respect of the relevant principles to be applied by a Court in probate cases.
  1. [9]
    Chief Justice Kourakis in Roche v Roche (No 2) considered the approach in probate cases and concluded at paragraph [18] as follows:
  1. “A person will not be penalised for invoking this Court’s supervisory jurisdiction in probate when the circumstances call for an investigation into the validity of a testamentary document. However, a person who challenges a testamentary disposition will risk an adverse costs order for persisting in an unmeritorious action after the discovery of evidential material which largely dispels any reasonable concerns. If a party ignores the weight of that evidential material and prosecutes an ultimately unmeritorious case to trial, the usual order that costs follow the event will be made. Exceptions from theordinary order will not be made to allow beneficiaries a forum in which to air family disputes with impunity.”
  1. [10]
    In Fielder v Burgess, Chief Justice Kourakis further went on to recognise at [62]:
  1. “However, the bottom line is that the disputes are between private parties advancing competing claims to the testator’s bounty for their private financial benefit. Of even greater contemporary significance is the effect of the old probate costs rule on parties to litigation of this kind. The probability of the payment of the costs of all parties out of the estate irrespective of the result gives the parties little incentive to make appropriate decisions as reasonable self-funded litigants about their prospects of success, and the proportionality of the expense incurred in bringing or defending proceedings.”
  1. [11]
    Further, his Honour stated at [63]:
  1. “I cannot see any utility in putting the beneficiaries to the expense of a contested hearing and depleting the estate in cases in which the ultimate result of litigation is clear notwithstanding the suspicion or ambiguity clouding the will.”
  1. Competing contentions as to costs
  1. [12]
    The respondent submits that the principles identified above apply in the circumstances of the current case. Here, it is submitted that the proceedings are in substance proceedings between private parties advancing competing claims to the testator’s estate for their private financial benefit. Accordingly, the respondent submits the ordinary costs rule applies, rather than any exception that may apply in a probate context.
  1. [13]
    The relevant circumstances in the current case are as follows:
  1. (a)
    The applicant challenged the validity of the Will in circumstances where, if she was successful, she would take the estate on intestacy.
  1. (b)
    The respondent propounded the Will under which she was the sole beneficiary of the estate.
  1. (c)
    The applicant and the respondent at trial advanced competing claims which were ultimately for their private financial benefit.
  1. (d)
    The respondent was wholly successful.
  1. [14]
    These circumstances support the usual costs rule applying.
  1. [15]
    In response, the applicant points to the suspicions as to the legitimacy of the Will and testamentary capacity as being a proper basis for the proceedings to be brought. The applicant also points to the substantial legal costs that she has incurred to date and her current lack of financial resources. It is in these circumstances that the applicant contends that the appropriate order is that the parties bear their own costs.
  1. [16]
    In response, the respondent contends against this outcome. The respondent submits that it was not reasonable for the applicant to take the matter to trial for the following reasons identified in submissions:
  1. (a)
    The trial was originally set for 10 and 11 November 2022. As the result of an application by the applicant, the trial was adjourned so that she could call Dr Mazurka. Ultimately at the trial, the applicant did not call Dr Mazurka. At trial, the applicant did call Mr Calvert and he was the only medical witness called by the applicant. Mr Calvert’s evidence did not assist the applicant’s case. The respondent contends in these circumstances the trial was not reasonably required to explore the medical evidence related to capacity.
  1. (b)
    The affidavits of Ms Saunders, Ms Burke and the respondent filed and served on behalf of the respondent provided strong evidence that the deceased knew what she was doing at the time she made the Will. This evidence was largely unchallenged by the applicant at trial.
  1. (c)
    The applicant gave no direct evidence of the deceased’s condition at the relevant time and could not, due to her lack of contact with the deceased.
  1. (d)
    Given the applicant’s text message of 26 December 2019, the exclusion of the applicant from the Will was not suspicious or surprising. That text message stated:

“I don’t want anything from you. I don’t want your money nor do I want any of your assets. Take me out of your will.”

  1. (e)
    There was never any reasonable basis for the applicant to challenge the authenticity of the deceased’s signature on the Will. This is particularly so given the uncontradicted evidence of Ms Saunders and Ms Burke.
  1. (f)
    Further, the applicant did not put to Ms Saunders and Ms Burke in cross- examination that the deceased did not sign the Will in their presence. Accordingly, the respondent submits that a trial was not reasonably required to explore the authenticity of the deceased’s signature.
  1. [17]
    Each of these matters identified by the respondent are relevant to the reasonableness of the applicant pressing ahead to trial. In these circumstances, I am not satisfied that there is any basis to depart from the usual position that costs follow the event.

Should costs be awarded on an indemnity basis?

  1. [18]
    Having determined that the applicant should pay the respondent’s costs, it is then necessary to consider whether the costs should be paid on a standard or an indemnity basis.
  1. [19]
    The respondent seeks costs on an indemnity basis relying on two Calderbank offers made by letters dated 21 July 2022 and 28 September 2022. The without prejudice letters dated 21 July 2022 and 28 September 2022 are exhibited to the affidavit of Kate Khanh Doan Do sworn on 8 May 2023.
  1. [20]
    The without prejudice letter dated 21 July 2022 from the respondent’s lawyers to the lawyers then acting for the applicant offered to settle the proceedings on the basis that the Will be admitted to probate but that the applicant in effect receive two-thirds of the estate and the respondent receive one-third of the estate. The letter is marked as a Calderbank offer.
  1. [21]
    The without prejudice letter dated 28 September 2022 is also from the lawyers for the respondent to the lawyers then acting for the applicant and offers to settle the proceedings on the basis that the Will be admitted to probate and that the applicant in effect receive 30 per cent of the estate and the respondent receive 70 per cent of the estate. The letter is also marked as a Calderbank offer.
  1. [22]
    As a result of the earlier orders, the Will is to be admitted to probate and the respondent is the sole beneficiary. The applicant will receive no part of the estate. Accordingly, the respondent submits that the result of the proceeding is less favourable to the applicant than both Calderbank offers.
  1. [23]
    The authorities in respect of Calderbank offers support the general principle that a party seeking indemnity costs must show that the other party acted unreasonably in not accepting the offer based on the circumstances existing at the time. It is not an evaluation of the matters as determined following the trial.[4]
  2. [24]
    At least from the time that the applicant received the affidavits of Ms Saunders, Ms Burke and the respondent in respect of the deceased’s capacity, the due execution of the Will and the deceased’s knowledge and approval of the contents of the Will, it is submitted that it was not reasonable for the applicant to refuse either of the offers. This is also to be considered in the context of the small size of the estate.
  1. [25]
    In these circumstances, the respondent submits that the appropriate order is that save as ordered by Justice Bradley on 1 November 2022, the applicant should be ordered to pay the respondent’s costs of the proceeding:
  1. (a)
    on the standard basis from 10 December 2021 until 22 July 2022; and
  2. (b)
    on the indemnity basis after 22 July 2022.
  1. [26]
    Alternatively, in respect of the orders (a) and (b) above, the respondent submits that costs on the standard basis up to 29 September 2022 and indemnity costs thereafter is appropriate, if the Court is not satisfied it was unreasonable not to accept the first Calderbank offer.
  1. [27]
    The affidavits of Ms Saunders, Ms Burke and the respondent were filed by 30 May 2022, with a mediator’s certificate filed on 20 July 2022. From at least that time,[5] the applicant had sworn evidence in relation to the deceased’s capacity and execution of the Will. Accordingly, the applicant acted unreasonably in not accepting the Calderbank offer dated 21 July 2022 based on the circumstances existing at the time.
  1. [28]
    This would equally apply in respect of the Calderbank offer dated 28 September 2022. However, I am satisfied that the first Calderbank offer dated 21 July 2022 operates in the current circumstances.
  1. [29]
    Accordingly, I am satisfied that it is appropriate to award indemnity costs as sought by the respondent on the basis that the refusal of the Calderbank offer contained in the letter dated 21 July 2022 was unreasonable.

Order

  1. [30]
    Accordingly,

THE COURT ORDERS THAT:

  1. Save as ordered by Justice Bradley on 1 November 2022, the applicant pay the respondent’s costs of the proceeding:
    1. (a)
      on the standard basis from 10 December 2021 until 22 July 2022; and
    2. (b)
      on the indemnity basis after 22 July 2022.

Footnotes

[1]Sullivan v Greig [2023] QSC 97.

[2][2017] SASC 75.

[3][2014] SASC 98.

[4]Outram v Public Trustee of Queensland [2020] QSC 159, [9]; S.H.A Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) [2020] QSC 323, [8]-[14]. In respect of indemnity costs, see also LPD Holdings (Aust) Pty Ltd & Anor v Phillips, Hickey and Toigo & Ors [2013] QCA 305, [21]-[22] and Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 232-234.

[5]There was one further affidavit of Ms Saunders filed on 11 October 2022.

Close

Editorial Notes

  • Published Case Name:

    Sullivan v Greig (No 2)

  • Shortened Case Name:

    Sullivan v Greig [No 2]

  • MNC:

    [2023] QSC 119

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    05 Jun 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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