Re McGilchrist (dec'd) (No 2)
[2025] QSC 122
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- Unreported Judgment
- Re McGilchrist (dec'd) (No 2)[2025] QSC 122
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Re McGilchrist (dec'd) (No 2)[2025] QSC 122
Re McGilchrist (dec'd) (No 2)[2025] QSC 122
SUPREME COURT OF QUEENSLAND
CITATION: | Re McGilchrist (dec’d) (No 2) [2025] QSC 122 |
PARTIES: | PAUL McGILCHRIST AND DREW McGILCHRIST AS EXECUTORS OF JOYCE McGILCHRIST, DECEASED (applicants) v KIM WHEELER (first respondent) AND RUTH EVOLUTE (second respondent) AND BRETT McGILCHRIST (third respondent) |
FILE NO: | BS 14352 of 2024 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 30 May 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Decided on written submissions pursuant to the order made on 17 December 2024 |
JUDGE: | Davis J |
ORDER: | 1. The applicants’ costs be paid from the estate on an indemnity basis. 2. There be no other order as to costs. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – FORM AND SETTLING OF COSTS ORDERS – where the testator made a will leaving parcels of land to her sons – where parts of the parcels of land were resumed – where as a result of the resumptions the real property descriptions of the parcels of land bequeathed by the testator were different to those which appeared in the will – where there was a typographical error in the description of a parcel of land – where the applicants brought an application for rectification and other declaratory relief regarding the parcels of land’s descriptions in the will – where the first respondent contended that no change in descriptions would result in the parcels of land falling to residue – where it was ordered that the parcels of land would pass pursuant to the testator’s ascertained testamentary intentions to the sons – where the applicants are entitled to have their costs paid out of the estate – whether the first respondent should pay the applicants’ costs – whether the first respondent should have her costs paid out of the estate Uniform Civil Procedure Rules 1999 (Qld), r 700 Re McGilchrist (dec’d) [2024] QSC 322, related |
COUNSEL: | Written submissions on behalf of the applicants prepared by J I Otto KC Written submissions on behalf of the first respondent prepared by G J Barr No appearance for the other respondents |
SOLICITORS: | McCullough Robertson Lawyers for the applicants Thompson Legal for the first respondent No appearance for the other respondents |
- [1]This is the determination of the question of costs as the result of orders made in Re McGilchrist (dec’d)[1] (the principal application).
Background
- [2]The applicants are the executors of the deceased estate of Joyce McGilchrist.
- [3]The applicants sought rectification of the will and declarations as to its meaning.
- [4]Rectification was sought because there was a typographical error in the will describing one of the parcels of land as “Lot 3 on SP 185563”, when the proper description was “Lot 3 on SP 158563”.
- [5]The will described two lots of land,[2] being Lot 3 on SP 158563[3] and Lot 8 on SP 147516. The land, by those descriptions, was left to particular beneficiaries. Prior to the death of the testator, small parts of those two lots were resumed and new titles issued so that there was no longer land described as “Lot 3 on SP158563” and “Lot 8 on SP 147516”. The first respondent took the position that as there was now no land described as “Lot 3 on SP 158563” and no land described as “Lot 8 on SP 147516”, the gift of the land that remained after the resumption failed and, therefore, those parcels of land fell to residue. The three respondents, with others, shared in that residue by the terms of the will. Only the first respondent took such a position.
- [6]The first respondent persisted with that argument at the hearing of the principal application. The other respondents did not adopt that position and did not appear at the hearing.
- [7]On 17 December 2024, the following orders were made:
- It is declared that Lot 3 on SP 309011 passes to Drew McGilchrist pursuant to the terms of clause 3(a) of the will.
- It is declared that Lot 8 on SP 309010 passes to Paul McGilchrist and Drew McGilchrist pursuant to clause 3(b) of the will.
- The parties shall file and exchange written submissions on costs by 4 pm on 24 January 2025.
- Each party shall have leave to file and serve an application for leave to make oral submissions on costs by 4 pm on 7 February 2025.
- Unless an application to make oral submissions on costs is filed, the question of costs will be decided on any written submissions filed and without further oral hearing.
- [8]It was not necessary to order rectification, but the will is to be read as if the land referred to was Lot 3 on SP 158563.[4]
Submissions of the parties on costs
- [9]By r 700 of the Uniform Civil Procedure Rules 1999, unless the Court otherwise orders, the executors (here, the applicants) should have their costs paid out of the estate on an indemnity basis. No reason is put forward by the first respondent that the applicants ought to be denied that order, and I shall make it.
- [10]The applicants then seek an order that the first respondent pay their costs of the proceeding on the standard basis. The practical effect of that is that the estate would only bear the difference between the applicants’ costs paid on an indemnity basis and the costs recovered on the standard basis from the first respondent.
- [11]The first respondent seeks an order that her costs be paid from the estate on an indemnity basis. Subject to circumstances which might deny her payment of her costs from the estate on an indemnity basis, that should be the order.
- [12]Alternatively, she says that there should be no order as to costs save that the estate pay the applicants’ costs on an indemnity basis. She resists an order against her.
Consideration
- [13]The first respondent has an interest in the estate and, therefore, has an interest in seeing that the will is properly construed.
- [14]The position of the first respondent adopted during the principal application was simply untenable and, in my view, obviously so. The land which was intended to be specifically gifted was clearly identifiable. The suggestion that the gift of the land should fail because a small part of the two lots had been resumed was baseless.
- [15]The position taken by the first respondent was not a reasonable one and the first respondent should not have her costs paid from the estate.
- [16]However, through no fault of the first respondent, the applicants were faced with a will that bore a typographical error and where the land which was gifted to specified beneficiaries bore a different description to that as appeared in the will. In those circumstances, prudent executors would be justified in seeking the directions of the Court, even where the true and proper intention of the testator was clear.
- [17]It might be that if the applicants had obtained the agreement and consent of all beneficiaries (including the first respondent) as to the proper construction of the will, the application might have been avoided. However, it is unwise to speculate as to what might have been. The fact is that there is a real prospect that the applicants may have thought it necessary to bring the application regardless of the first respondent’s position.
Orders
- [18]In all the circumstances, it is appropriate for the estate to bear the costs of the application but not the costs of the first respondent, and so the appropriate orders are as follows:
- The applicants’ costs be paid from the estate on an indemnity basis.
- There be no other order as to costs.