Background
Judith McKay, executor of Glenn Rycen Cooke’s estate, had sought judicial advice concerning distribution of the residuary estate to Queensland Ballet Company to administer as a charitable purpose trust. Australasian Dance Collective Ltd (ADC) intervened, contending that the residue should instead be distributed to it, and brought a related application.
The substantive applications were determined in June 2026. This decision concerned costs only. The executor’s costs had already been ordered to be paid from the residuary estate on a solicitor-own-client basis. ADC was unsuccessful in its own application, while Queensland Ballet sought to recover its costs from ADC or, alternatively, from the estate on an indemnity basis.
The Court’s Holding
Hindman J ordered ADC to pay the executor’s costs of ADC’s application, fixed at $25,000. Although ADC’s application was not frivolous and its participation as a contradictor had some value, it had failed in that application and the ordinary rule that costs follow the event applied.
The Court declined to order ADC to pay Queensland Ballet’s costs of the executor’s originating application. Queensland Ballet was a proper respondent and was entitled to costs from the estate, but it had participated more extensively than necessary in advancing a position already advanced by the executor, incurring substantially duplicative costs. Its costs of the originating application were therefore payable from the residuary estate on the standard, rather than indemnity, basis. Otherwise, there was no order as to costs.
Key Takeaways
- An unsuccessful intervening charity may be ordered to pay costs despite limited assets and charitable status.
- In estate-administration litigation, a contradictor’s useful role can justify withholding some adverse costs orders.
- A beneficiary that duplicates the executor’s case may not shift its additional litigation costs to an opposing party.
Why It Matters
The decision illustrates the Court’s fact-specific approach to costs in charitable-estate litigation. While costs usually follow the event, the Court will distinguish between necessary participation in an executor’s judicial-advice application and avoidable, duplicative advocacy.
It also confirms that rejected settlement offers and an unsuccessful outcome do not automatically justify indemnity costs where the successful party’s own conduct materially increased the costs incurred.