Chapman v Wilson & Ors [2013] QCA 282

SUPREME COURT OF QUEENSLAND CITATION: Chapman v Wilson & Ors [2013] QCA 282 PARTIES: MARGARET CHAPMAN by her litigation guardian CHRISTOPHER JOHN RAWSON-HARRIS (appellant) v WILLIAM RODERICK SELWYN WILSON & WAYNE RODERICK LYONS (first respondents) MICHAEL WILLIAM FRASER & SIMON MARTIN FRASER & ALEXANDER DUNCAN FRASER & DOUGLAS ROSS FRASER (second respondents) FILE NO/S: Appeal No 12367 of 2012 SC No 2789 of 2012 DIVISION: Court of Appeal PROCEEDING: Miscellaneous Application – Civil – Further Orders ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 27 September 2013 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers JUDGES: Holmes and Gotterson JJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDERS: 1. The appellant pay the first respondents and the second respondents’ costs of the appeal on the standard basis. 2. No order as to the appellant’s costs of the appeal. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appeal was dismissed – where the appellant and respondents were given leave to make submissions as to costs – where the first and second respondents sought an order that the appellant pay their costs of the appeal – where the appellant concedes that it would be appropriate to make an order that she pay the first but not the second respondent’s costs – where the second respondent remaindermen beneficiaries were joined to the proceedings by the first respondent – whether the appellant should be ordered to pay the second respondent’s costs -- 1 of 3 -- 2 Freeman v Jaques [2006] 1 Qd R 318; [2005] QCA 423, cited Harbin v Masterman [1896] 1 Ch 351 Re McIntyre [1993] 2 Qd R 383, cited COUNSEL: G A Thompson with A Fraser for the appellant D B Fraser with R Whiteford for the first respondents G R Dickson for the second respondents SOLICITORS: de Groots Wills and Estate Lawyers for the appellant Wilson Lawyers for the first respondents McCullough Robertson for the second respondents [1] HOLMES JA: I agree with the reasons of Gotterson JA and the orders he proposes. [2] GOTTERSON JA: Reasons for judgment in this appeal were published on 27 August 2013. Pursuant to leave granted at that time, the parties have made submissions with respect to the costs of the appeal. Separate submissions have been made on behalf of the first respondents, the second respondents and the appellant. [3] The issue on appeal concerned the meaning of the expression “pay transfer and hand over the income and profits” of a trust fund established under a Will. The need for a curial determination of the meaning of the expression arose in the course of correspondence between the first respondent trustees and legal representatives for the appellant life interest beneficiary in which that issue was debated. Prudently, the trustees commenced proceedings to have the issue determined. Necessarily, they joined the second respondent remaindermen beneficiaries as parties. [4] The primary protagonists in this dispute, at first instance and on appeal, have been the first respondents and the appellant. The first respondents have succeeded in resisting the appeal. They ask for an order that their costs of the appeal be paid by the appellant on the standard basis.1 To her credit, the appellant submits that that is an appropriate order to make. [5] The issue in dispute is whether any order should be made in respect of the second respondents’ costs. They, too, have succeeded in the appeal. Relying on the decision in Harbin v Masterman,2 the appellant submits that to order her to pay more than one set of respondents’ costs would be oppressive and that the discretion ought therefore be exercised against the second respondents by making no order in their favour. [6] That submission ought to be rejected for two reasons. Firstly, the circumstances of Harbin are not analogous with those here. In that case, five residuary legatees were represented by four different sets of counsel in an appeal. They succeeded and each claimed costs against the annuitant appellant. There was an identity of interest shared by each of those respondents. That is not the case here. The interests of the second respondents as remaindermen beneficiaries do not coincide with those of the first respondents as trustees. It was legitimate for the second respondents to be represented in order to protect their interests by participating actively in resisting the appeal. 1 They placed reliance upon Freeman v Jaques [2006] 1 Qd R 318 at [48] and Re McIntyre [1993] 2 Qd R 383 at 388. 2 [1896] 1 Ch 351. -- 2 of 3 -- 3 [7] Secondly, the manner in which the appeal was argued justified their separate representation. As noted in the reasons,3 during oral argument the appellant refined her submissions to one that the scheme of the Will required that the unrealised capital gains or profits ought to be paid or credited to her upon death rather than periodically during her lifetime. The court benefited from submissions on this refinement made by the second respondents’ counsel who was present at the hearing and therefore in a position to make them promptly. Conformably with the usual rule,4 the unsuccessful appellant ought also pay the second respondents costs of the appeal on the standard basis. [8] No order ought be made in respect of payment of the appellant’s costs of the appeal from the trust fund, its income or profits. Orders [9] The court orders: 1. The appellant pay the first respondents and the second respondents’ costs of the appeal on the standard basis. 2. No order as to the appellant’s costs of the appeal. [10] APPLEGARTH J: I agree with the reasons and proposed orders of Gotterson JA. 3 At [39], [41], [42]. 4 UCPR 681. -- 3 of 3 --