Clout v Storry

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW THE EVENT - where the parties provided further submissions on the issue of costs - where the applicants were successful in their application for an order that there be a revocation of the grant of probate issued to the first respondent - where the applicants sought a costs order against the first respondent on an indemnity basis - whether the costs order sought by the applicants should be granted applying the general rule that costs should follow the event

Uniform Civil Procedure Rules 1999 (Qld), r 681

Clout v Storry [2025] QSC 311

Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225

The second respondent on her own behalf and in her capacity as the first respondent

• [1] I delivered judgment in the primary proceeding[1] on 19 November 2025. I did not however make orders on that day as the first applicant needed to secure the consent of a solicitor to appointment as the Administrator of the estate. This decision is therefore to make the necessary orders for finalise the application, and to deal with the costs arising from the primary judgment.
• [2] Mr Clout seeks an order for costs against the first respondent, Venetia Storry as executor of the estate of John Anthony Storry. He relies upon r 681 of the Uniform Civil Procedure Rules 1999 (Qld) that costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event unless the court otherwise orders. The order therefore seeks not that Ms Storry personally, pay the costs, but that there be an order that she pays them in her role as executor, in effect, that the estate pay the costs. Additionally, Mr Clout asks that Ms Storry (as executor) not be entitled to an indemnity out of the estate for her costs (if any).
• [3] The applicants' success on the application was clearly established by the application of orthodox legal principle. The first respondent's position was untenable, and accordingly the first respondent ought to pay the costs.
• [4] As with previous submissions, Venetia Storry's submissions did not address the relevant question in respect of costs, but rather submitted that this court had misapplied relevant authorities, as a consequence of which carrying out my earlier orders would result in a substantial miscarriage of justice. Accordingly, Ms Storry submits that I should not award costs and I should "revise" my decision and order a dismissal of the application which I have already granted.
• [5] In a separate set of submissions also filed in respect of costs, Venetia Storry identified what she contended to be numerous errors generated by Mr Clout as the applicant, all of which had led to the Federal Court's declaration of her as a vexatious litigant. Because of her assertions that Mr Clout had caused the declaration to be made against her in another court, based on what she asserts to be inaccuracies, she seeks an order that Mr Clout pay her costs, rather than that she be ordered to pay his.
• [6] None of the matters which Ms Storry has raised in any way displaces the prima facie position that costs ought to follow the event. In my view there was much to commend the submission that Ms Storry's defence of the application to remove her as executor was hopeless. The applicant asks for costs on the indemnity basis.
• [7] In Colgate Palmolive Co v Cussons Pty Ltd,[2] Sheppard J quoted from Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd,[3] to the following effect:

"Courts in both the United Kingdom and Australia have long accepted that solicitor and client costs can properly be awarded in appropriate cases where 'there is some special or unusual feature in the case to justify the court exercising its discretion in that way'... It is sometimes said that such costs can be awarded where charges of fraud have been made and not sustained; but in all the cases I have considered, there has been some further factor which has influenced the exercise of the court's discretion - for example, the allegations of fraud have been made knowing them to be false, or they have been irrelevant to the issues between the parties ... I believe that it is appropriate to consider awarding 'solicitor and client' or 'indemnity' costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the court will need to consider how it should exercise its unfettered discretion."

• [8] There is unreasonable conduct on Ms Storry's behalf as executor in the conduct of this litigation.[4] She has wasted the court's time in the prosecution of arguments which cannot succeed. Her original arguments were, as I have already found, replete with irrelevancies and misconceptions rendering them difficult to follow and try to understand them and make them comprehensible causes considerable court time to be consumed, directed to no useful end. Her costs submissions were no different.
• [9] Accordingly, I order that the first applicant's costs of the application determined by me on 19 November 2025 be paid out of the estate of John Anthony Storry on the indemnity basis.[5]
• [10] As to the appointment of an independent administrator the first applicant has now filed and served material demonstrating that appointment as independent administrator will be accepted by Michael Karl Klatt, solicitor of Mullins Lawyers.
• [11] In the circumstances the orders are as follows:
  1. The First Respondent, Venetia Louise Storry, be removed as executor and trustee of the estate of John Anthony Storry ("the Deceased").
  2. The grant of probate of the will of the Deceased, as ordered on or about 25 March 2019 in matter 1613/19 (the "Grant"), be revoked.
  3. The First Respondent, Venetia Louise Storry, bring the original Grant into the Registry within 7 days of the date of these orders.
  4. Pursuant to s 6 of the Succession Act 1981 (Qld) and r 603(2) of the Uniform Civil Procedure Rules 1999 (Qld), subject to the formal requirements of the Registrar, Letters of Administration of the will of the deceased the subject of the Grant be granted to Michael Karl Klatt ("the Administrator").
  5. Pursuant to s 68 of the Succession Act 1981 (Qld), s 101 of the Trusts Act 1993 (Qld) and r 638(5) of the Uniform Civil Procedure Rules 1999 (Qld), the Court fixes the Administrator's remuneration, with such remuneration for professional and non-professional work to be assessed by an independent costs assessor pursuant to the Supreme Court scale, as varied from time to time on the indemnity basis and at approximately two monthly intervals, and on completion of the administration. All fees assessed are not payable to the Administrator personally, but to the firm of which the Administrator is a Partner.
  6. Pursuant to s 6 of the Succession Act 1981 (Qld), all estate funds, chattels of the deceased, keys for any real property and motor vehicles of the deceased and all other documentation and information relevant to the estate which are in the possession or control of the parties be delivered the Administrator within fourteen (14) days from the date of these orders.
  7. Pursuant to s 114 of the Land Title Act 1994 (Qld), the Administrator be registered as proprietor of any real property belonging to the deceased.
  8. Pursuant to s 45(4) of the Succession Act 1981 (Qld) and ss 82 and 90 of the Trusts Act 1973 (Qld), all property of the deceased vest in the Administrator and be deemed to have so vested on the date of the deceased's death.
  9. Pursuant to s 6 of the Succession Act 1981 (Qld), the Administrator is at liberty to retain Mullins Lawyers to act on his behalf in respect of the administration of that estate with their professional costs and outlays in so acting to be assessed by an independent cost assessor pursuant to the Supreme Court scale, as varied from time to time, on the indemnity basis and at approximately two monthly intervals, and on completion of the administration.
  10. The Administrator be at liberty to apply for directions and orders as he deems in his unfettered discretion fit in relation to the administration of the estate of the deceased upon the giving of three days' notice in writing to the other parties.
  11. Pursuant to r 598(4) of the Uniform Civil Procedure Rules 1999 (Qld), the Administrator be relieved of any obligation to publish any notice of intention to apply for the grant.
  12. The applicants' costs of and incidental to this Originating Application be paid from the estate of the deceased on the indemnity basis.
  13. There be no costs entitlement of the first respondent to costs in respect of this Originating Application.

[1] Clout v Storry [2025] QSC 311.

[2] [1993] FCA 536; (1993) 46 FCR 225 at 230.

[3] (1988) 81 ALR 397 at 400-401 (Woodward J).

[4] Clout v Storry [2025] QSC 311 at [27].

[5] Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225.