McDermott v McDermott [No 3][2025] QSC 99

SUPREME COURT OF QUEENSLAND

1. [1]
   BROWN J: Mr McDermott (applicant) sought to appeal an order made on 18 December 2019 that he pay costs of the respondents as executors (respondents) of the application filed 5 December 2019.  He requires leave to appeal such an order pursuant to s 64 of the Supreme Court Act 1991 (Qld), given he only seeks leave to appeal a costs order.  The President of the Court of Appeal ordered that the appeal be stayed pending leave being obtained from the trial judge who originally made the costs order.  As a result I sat in the trial division to hear the application.
2. [2]
   Subsequently, Mr McDermott, filed an amended application seeking to have the costs order of 18 December 2019 set aside under r 667(2) and/or r 668 of the UCPR. 
3. [3]
   Shortly before the date set down for hearing of the application for leave, Mr McDermott filed a further amended application which sought leave to appeal the costs order made on 20 November 2023 in respect of the trial where he unsuccessfully claimed adequate provision had not been made for him in his father’s will.  He also applied to have that order set aside under r 667 and r 668 of the UCPR. 
4. [4]
   The respondents, despite the late notice of the amended application, requested that all applications be heard by me at the one time to avoid further delay and costs.  I agreed to do so.
5. [5]
   As I have reached the view that Mr McDermott has not raised any basis upon which leave to appeal should be granted or for either costs order be set aside under r 667 or r 668 of the UCPR, it is unnecessary for me to consider whether Mr McDermott could properly seek leave and seek to set aside the order under r 667 and r 668 UCPR.   I act on the basis that he is able to do so.  It should be observed however that there is a tension between the different bases upon which relief is sought, since leave to appeal relies on an arguable error being identified in the order made whereas an application under r 668 assumes the correctness of the order made at the time and its application depends on a fact arising after the order.^[1]

Leave to appeal the order of 18 December 2019

6. [6]
   The cost order of 18 December 2019 followed an application being made by the respondents to strike out Mr McDermott’s application for a family provision or for an order that he deliver an affidavit as required by Practice Direction no 8 of 2001.  While the Court did not strike out the family provision proceedings, it did order that Mr McDermott deliver an affidavit complying with paragraph 7 of Practice Direction 8 of 2001.  It then ordered that Mr McDermott pay the costs of the respondents’ application filed 5 December 2019. 
7. [7]
   The application was called for hearing on 18 December 2019.  Mr McDermott did not appear before the Court on that day, although Ms Ban did at Mr McDermott’s request inform the Court that he was on his way but was running late.  The Court adjourned the matter until 11.30 am.  When the matter was called on at 11.30 am Mr McDermott still did not appear.  The Court being satisfied he had been served and was aware of the application proceeded to hear the matter.
8. [8]
   Mr McDermott contended from the Bar table that he attended Court the afternoon of 18 December 2019, but he did not provide an affidavit explaining his failure to attend the hearing of the application.
9. [9]
   Leave to appeal a costs order is required pursuant to s 64 of the Supreme Court Act.  In order to obtain leave Mr McDermott must identify a reasonably arguable error in the exercise of the court’s discretion consistent with the principles of House v The King^[2] and persuade the court that the error needs to be corrected to correct a substantial injustice.^[3]  Leave is not granted as a matter of course, the purpose of s 64 of the Supreme Court Act being to limit the number of appeals about costs.^[4]
10. [10]
    In the present case the costs order followed the event, consistent with r 681 UCPR given that the respondents generally were successful in obtaining the relief they sought under their application.  No specific error is identified by Mr McDermott in relation to the costs order made.  Rather he contends that the Court should have reserved the matter as it was premature to make any order as to the costs on that day. Mr McDermott had failed to deliver an affidavit supporting the family provision application which he had filed on 6 July 2018 despite a number of requests by the respondents to do so.  The Court ordered that he do so.  Given the respondents’ success in their application, there was no reason that the costs should not have been dealt with in the context of the Court making orders with respect to the application and an order made consistent with costs following the event.  Mr McDermott has not demonstrated any error in the order made or that any different order should have been made.  While significant to Mr McDermott, the costs order related solely to an interlocutory application and is not an order, which even if in error, is likely to cause a substantial injustice if not set aside.  Mr McDermott has not demonstrated any basis upon which the Court should grant leave to appeal the costs order made.
11. [11]
    Mr McDermott however also raises his absence when the order was made as a basis upon which the court could set aside the order pursuant to r 667(2)(a) of the UCPR. Mr McDermott was absent when the order was made and the power under r 667(2)(a) UCPR is therefore enlivened.  In considering whether to set aside the order the Court must consider whether there is a satisfactory explanation for his non-appearance and for his delay in raising it some five years after the order was made, whether there is any detriment to the respondent if set aside and whether it is likely that a different order would have been made had he appeared at the hearing.^[5]
12. [12]
    Mr McDermott was aware of the application and that it was to be heard on 18 December 2019.  Mr McDermott provides no satisfactory explanation for his failure to appear at the hearing, particularly in circumstances where Ms Ban had informed the Court that he was running late and the Court stood the matter down in order to given him time to arrive at Court.  Notwithstanding that he has provided a number of affidavits he has not provided any real explanation for his non-attendance that day. It appears his raising of r 667 at this stage is because he has just appreciated that such argument may be open to him. T he respondents will suffer some detriment if the order is set aside but that would not, in the context of an interlocutory order as to costs, be substantial.  More significantly, it is not likely that a different order would have been made had Mr McDermott appeared at the hearing.  Mr McDermott seeks to attribute the fault for his not having delivered the affidavit to the delay of the respondents in providing him with information that he requested and engaging in conduct which interfered with his preparation.  That is not born out by the facts.  Mr McDermott was in fact provided with information on 4 September 2019 which he had requested on 8 July 2019.  At the time the information was provided, Mr McDermott was also put on notice by the respondents’ solicitor that the respondents would make an application to strike out his family provision application in the event he did not provide an affidavit to them by 18 September 2019.  He did not do so and the application was made by the respondents in December 2019.  After the Court made the order for him to deliver his affidavit by 10 January 2020, Mr McDermott did subsequently deliver that affidavit without seeking any further information. 
13. [13]
    While Mr McDermott contends that he was weighed down trying to obtain the information needed for his affidavit which was affected by the breakdown in relations with the respondents which he addressed in his affidavits, in particular his affidavit (affirmed 10 June 2021) which is court document 23, none of the matters referred to in that affidavit demonstrate that Mr McDermott could not file an affidavit in support of his own application for further family provision such that the respondents’ application to strike out his family provision application or obtain an order that he deliver an affidavit was not justified, even if he may have included further matters.
14. [14]
    While Mr McDermott complains that all the information he requested or needed was not provided to him, it is evident that he was capable of providing an affidavit in support of his own application at least after September 2019.  In the circumstances where he had failed to provide an affidavit in support of his application commencing the proceedings, which had been filed more than a year earlier, and having been put on notice that the respondents would bring an application if he did not deliver an affidavit.  I am satisfied that even had he been present the same order would have been made including as to costs.
15. [15]
    While Mr McDermott asserts full disclosure was not made to the Court by the respondents, it appears his complaint is that further documents were subsequently disclosed to him.  He doesn’t identify any breach of obligation of the respondents in the conduct of the application of 5 December 2019.  Mr McDermott otherwise does not raise any matter which would support the Court setting aside an order on the basis of r 667(2)(b) or (d) of the UCPR. 
16. [16]
    As to r 668 of the UCPR, while Mr McDermott identifies various exhibits at the trial and a table included in Counsel’s submissions, Mr McDermott does not identify the particular fact or facts which arose after the costs order was made, which would entitle him to relief from the costs order made on 18 December 2019 and have caused a different order as to costs to be made.^[6]  While he refers to a diary entry for 22 November 2022 of a plumber to fix and repair a front leaky freshwater tap which he considers would have resolved or stopped the white ant issue and caused him to run the matter differently, he states in his affidavit that he had been complaining of the issue of the leaky tap since 2017.  The existence of that fact and any subsequent builder’s report, while they may have added to the evidence Mr McDermott wished to rely on would not evidently have changed the costs order made on 18 December 2019 which arose from his failure to deliver the affidavit he was required to deliver in support of his family provision application.  Similarly, he identifies no fact arising from the exhibits tendered at trial which would have led to a different order on costs being made on 18 April 2019.

17. [17]
    To the extent he refers to counsel’s submissions of 18 December 2019, no “fact” in relation to those submissions is identified. Consistent with the applications jurisdiction the submissions did not have to be provided to Mr McDermott prior to the day of hearing.  In any event ,no matter is identified arising from those submissions which would have resulted in different orders being made.
18. [18]
    Leave to appeal the costs order of 18 December 2019 is refused and the application to set aside the order on the basis of r 667(2) and/or r 668 of the UCPR is dismissed. 

Application for leave to appeal trial costs order

19. [19]
    Following a trial in relation to this matter, Mr McDermott was unsuccessful in obtaining further provision under his father’s will (McDermott v McDermott & Anor [2023] QSC 163).  Costs of the proceedings were subsequently ordered to be paid by McDermott on a standard basis, but after 30 September 2021 (see McDermott v McDermott & Anor (No. 2) [2023] QSC 263) on 20 November 2023 (trial costs order).
20. [20]
    Mr McDermott in his amended application sought leave to appeal the trial costs order, although no appeal against the trial costs order has been filed.  He seeks leave solely in relation to the costs order and therefore the considerations under s 64 of the Supreme Court Act discussed above apply.  He also relies on r 668 of the UCPR as a basis on which the Court should set aside the order.  While his application refers to r 667 of the UCPR he raises no matter which enlivens the power to set aside under that rule.
21. [21]
    Mr McDermott seeks to set aside the trial costs order some two years after it was made with no satisfactory explanation for his delay.  His delay is significant and militates the granting of leave or indeed any other relief.
22. [22]
    The time for filing an appeal under the rules has long since passed under r 748 of the UCPR, given the costs order had been made over two years prior to his raising it.  Mr McDermott would require an extension of time to file such an appeal.  He has provided no draft notice of appeal.  Given that he has not filed any notice of appeal the application for leave is almost futile.  However, I have considered the matters raised in his amended application and supporting affidavit material and draft submissions which he provided in support of his applications to ascertain whether he has identified any basis for error in relation to the trial costs order and leave being granted.
23. [23]
    Mr McDermott’s complaints are particularly directed to exhibits and a table in counsel’s submissions which he says were not provided to him well before the trial. Other matters are as to rulings excluding evidence during the trial or relate to complaints about the respondents’ conduct as to executors.  In effect Mr McDermott seems to argue that further evidence should have been able to presented by him at trial or other evidence should not have been excluded.  No appeal has been sought from the Court’s substantive decision.  Those matters of which he complains seek to reargue matters the subject of the trial and do not bear upon the trial costs order.  They demonstrate no error in the costs order made.  Mr McDermott made submissions prior to the trial costs order being made and could have raised any such matters at that time.  He did not do so. 
24. [24]
    Mr McDermott raises no reasonably arguable error in relation to the trial costs order, nor established any other matter suggesting substantial injustice will be suffered if leave is not granted. 
25. [25]
    I am not satisfied that Mr McDermott should in the circumstances be granted leave to appeal the trial costs order.
26. [26]
    Mr McDermott claims an entitlement for relief from the trial costs order under r 668 of the UCPR on the basis that the costs order arises from that facts arising after the orders were made, which entitled him to relief from the orders. He outlines a number of matters which he appears to contend are facts in [4] of his amended application.^[7] It is unclear whether he contends they are new facts relevant to the 18 December 2019 costs order or the trial costs order and I have considered them in relation to each of those orders.  Plainly the exhibits at trial and counsel’s final trial submissions, which included a summary table based on evidence presented at trial, were matters that he was aware of prior to the trial costs order being made and which could have been the subject of submissions by him.  They do not constitute new facts that arose or were discovered after the costs order made.  Even if they did, Mr McDermott does not demonstrate that they entitle him to be relieved from the costs order made or to a different order.  Matters going to the credibility of the respondents were raised by him at the trial and do not enliven any relief under r 668 of the UCPR.
27. [27]
    Mr McDermott also refers in 5.1 and 5.2 of his amended application to the fact that a leaky freshwater pipe underneath the kitchen/toilet area which caused large amounts of water to build up underneath house has recently been fixed.^[8]  He refers to a plumber’s diary entry of 22 November 2022 which does relate to the period post the trial although prior to the costs order being made.  The leaky pipe was also a matter to which he deposes that he had complained to the respondents as executors from late 2017 until November 2022.  He contends that the water and flooding underneath the house caused him considerable frustration throughout the family provision legal case and noted that water attracts white ants, a matter which he complained of during the trial. While he also identifies a quote of Peter Burke as an additional matter he could not raise at trial, his affidavit indicates that he did not pursue the obtaining of that quote in an itemised form until well after the trial, even though he had obtained a quote not properly itemised dated 22 September 2022 and that he made a conscious decision to wait until the Court had delivered judgement before pursuing it further.  The fact he obtained an itemised report from Mr Burke does not suggest that the outcome of the trial or the costs order made would have been different.  It may have been further evidence, particularly relevant to the white ant issue, but that would not enliven the power under r 668 of the UCPR.
28. [28]
    Mr McDermott also raises the fact that the executors informed him he has no authority to engage trades people and bringing them on site for inspection or quotation and placed an advertisement in 2018 to that effect as interfering with his trial preparation.  He did however place such evidence before the Court and had considerable time prior to the trial to obtain the relevant quotes. 
29. [29]
    It is plain on his own affidavit material and application that he was well aware of the plumbing problem, the need for repairs and the emails from the executors in relation to the plumber attending the residence in 2022 prior to the costs order being made. 
30. [30]
    The matters which Mr McDermott seeks to raise are not new facts but are matters which arose during trial about which he would like to have obtained further evidence for the purposes of the trial and which may have caused him to conduct his trial differently.  He may now, with the benefit of the judgment, appreciate the shortcomings in his evidence at trial, but the purpose of r 668 does not serve to allow parties to revisit evidence post-judgment to demonstrate that they could have obtained better evidence.
31. [31]
    Further, Mr McDermott asserts that while the Court sought, in making the trial costs order, to craft an order that would prevent the “unravelling” of the estate as intended under his father’s will, a new fact has arisen, given that in December 2024, the respondents as executors foreshadowed selling the estate in a letter to Mr McDermott.  That would be a very unfortunate outcome of this very prolonged matter.  While the respondents indication of an intention to sell the trust property has arisen since the trial costs order, it is not a fact which entitles him to relief under r 668 UCPR.  As was submitted by the respondents, it is unfortunately a consequence of the events which have occurred following the costs order, but is not a “fact” which would entitle Mr McDermott to have the costs order set aside or a different order being made. 
32. [32]
    The other matters otherwise raised by Mr McDermott raise no basis upon which the power in r 668 of the UCPR would be enlivened, or in any event an entitlement for any relief from the trial costs order under r 668 UCPR.  The majority of matters which Mr McDermott seeks to raise are to reargue the facts canvassed at trial, rather than raising any facts that would entitle him to relief from the original trial costs order and demonstrate the original order should not have been made.^[9]
33. [33]
    Mr McDermott has not raised any basis upon which this court could be satisfied that it is reasonable arguable that an error was made in relation to the costs order and a substantial injustice needs to be corrected upon appeal, nor that any fact has arisen or been discovered since the costs order was made which would entitle him to be relieved from the original costs order and lead to a different order being made by the Court exercising the powers under r 668 of the UCPR. 
34. [34]
    The application pursuant to r 668 is dismissed and leave to appeal the trial costs order is refused.

Orders

35. [35]
    After the Court delivered the orders referred to in paragraphs 1 and 2 below, the respondents requested the costs of the applications be paid by Mr McDermott.  While Mr McDermott pointed out he could not claim costs, that is unfortunately the position of self-represented litigants and not a basis not to award costs against an unsuccessful applicant. Given Mr McDermott failed to obtain relief under his applications he should pay the costs of the respondents.
36. [36]
    The orders of the Court are:

    1. That the application for leave to appeal the costs order of 18 December 2019 and the costs order made on 20 November 2023 is refused;
    2. That the application to set aside the costs order of 18 December 2019 and the costs order made on 20 November 2023 is refused;
    3. That the applicant pay the respondents’ costs of the amended applications filed 31 March 2025 and 3 April 2025.