MLC Ltd v Brooker

REASONS FOR JUDGMENT 1 On 2 December 1997 the applicant issued a personal protection portfolio policy to Russell Leonard Brooker on his own life. In the policy his two children, Sharnah Renee Brooker and Hayden Russell Brooker, were nominated to receive the benefits payable on the policy in the event of Mr Brooker's death. On 4 November 2000, Mr Brooker died in a car accident. By his will he appointed the third respondent to be his executor, and the fourth respondent, his sister, to be the guardian of his infant children. On 19 February 2001, the executor requested the applicant to pay the amount of the policy to the estate. The applicant then instituted proceedings under s 215(1) of the Life Insurance Act ("the Act"), seeking a declaration as to the persons entitled to the policy. The infant children were named as first and second respondents to the proceedings 2 At or about the time of the filing of that application, the sum of $205,928.51 was paid into Court pursuant to the Act. When the matter came before me on 2 May 2001 application was made by Nerissa Lee Brooker, the children's mother, for her appointment as tutor for the infant children, and I gave directions necessary to secure that appointment, as well as to prepare the application for hearing. 3 The documents necessary to have Mrs Brooker appointed tutor have been filed and I am satisfied that this is a proper case for her to be so appointed. She is the children's mother, the children live with her, and she was effectively given custody of the children in the matrimonial causes proceedings between herself and her late husband. All parties are agreed that it is appropriate that orders 1, 2, 3, 4 and 5, as sought in the Notice of Motion of 25 May 2001, should be made. 4 Counsel for the third and fourth respondents submits that it would be appropriate for the costs of all parties to be paid out of the fund up to 3 May 2001, but thereafter there should be no order as to costs. Counsel submits that this is the appropriate course, because the orders which are now sought are substantially the same orders that were proposed by the executor on 6 April 2001. The only difference is the identity of the trustee. Hence costs incurred after that date (except for the costs of the applicant), have been unnecessarily incurred and should be paid by the party who incurred them. 5 I think that this submission overlooks three things. First, it was necessary for a tutor to be appointed so far as the first and second respondent are concerned. It was appropriate that the children's mother should take the necessary steps designed to bring about that result. Second, there has been a change in the identity of the corporate trustee, apparently because the fees to be charged by National Australia Trustees Limited are less than those which would have been charged by the trustee nominated by the executor. Third, the proposal is that there should be a joint trusteeship, Mrs Brooker and the National Australia Trustees Limited being joint trustees. 6 In HCF Life Insurance Co Pty Limited v Lamb 2000 FCA 573, Branson J considered the question of costs in cases such as the present. Her Honour came to the conclusion that there is jurisdiction in the Court to make an order for payment of costs out of the fund. I respectfully agree with her Honour's decision in that respect. 7 For the reasons I have given, I make orders substantially in terms of pars 1 to 5 as sought in the Notice of Motion of 25 May 2001. I order that the costs of all parties to the proceedings, except insofar as they are of an unreasonable amount and except insofar as they have been unreasonably incurred, be assessed and paid out of the monies paid into Court. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.