Bradshaw, Re [1992] QSC 113

TR.AJ'lSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Couns, George Street, BRJSBANE. 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold llr'ithout the wrinen authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION AMBROSE J I No 533 of 1989 IN THE MATTER OF PART IV OF THE SUCCESSION ACT 1981 (as amended) and IN THE MATTER OF SAMUEL THOMAS BRADSHAW () BRISBANE .. DATE 24/03/92 JUDGMENT 1 ....... . .. . . .. '~ ..... : {. -;- .. -- 1 of 3 -- ---------------- (r-:'._ 12 4_0_3_9_2--~------ - JUDGMENT ·, __ ._.·· HIS HONOUR: In this case the applicant has failed in her attempt to obtain an order for a lump sum payment out of the estate in lieu of the charge or in addition to the charge secured upon that estate. The charge is a very generous one 10 when one considers the size of the estate. In dismissing the application, I took into account that the size of the estate upon which the charge was fixed was, for all practical purposes, approximately $174,000. In arriving 20 at the conclusion which I did, I assumed that the costs of the administration of the estate and the costs of both parties to this application would, for all practical purposes·, be met out of debts owed to the estate amounting to $35,000, approximately, which did not form part of the 30 $174,000 sum treated by the parties as the size of the estate upon which any order I made would operate. I have no information as to when the estate may receive that sum of $35,000. 40 In the circumstances of this case, if I had power to do so, I would order that the costs of all parties be first paid out of that part of the estate represented by the unpaid debts (interest free) of about $35,000. Although I have very wide powers under s 41, I doubt if they ~xtend to making that 50 sort of order and I keep in mind that to the extent that annuity is charged on the estate, it is also charged upon the debts of $35,000 still owed to the estate. The respondent as executrixwill be obliged to get into that 60 Govt. Printer, Old. r 2 10 20 0 0 30 0 40 0 50 60 -- 2 of 3 -- 240392 JUDGMENT part of the estate as soon as reasonably possible to meet the obligations which must be met in the administration of the estate and, of course, the size of the annuity payable under cl 3(c) of the Will will not diminish by reason merely of resort for_ costs being made first to the sum of $174,000. 10 10 This is a difficult and rather unusual situation to consider. I have regard to the written submissions I have received from. both parties on the question of a costs order. In the application I assurnedthat the size of the estate upon 20 20 ') which any order would operate, that is any order apart from costs, was $174,000 and I assumed that the balance of the estate of $35,000 would be available to meet the costs of ( ) administration of $8,000 and the cost of both parties to this application in the sum of $24,000. 30 30 In the circumstances, I have decided to exercise my discretion essentially in favour of the applicant on this ( ) matter and I order that the costs of the executrix be taxed as between solicitor and own client and that the costs of 40 40 the applicant simply be taxed and that both taxed sums be paid out ' ~ of the estate. so 60 60 Govt. Printer, Old. 3 -- 3 of 3 --