Williams v Robba

• [1] By decision published 26 August 2025 the originating application brought by Paul Francis Williams and Mark Anthony Williams (together, the applicants), seeking, in summary, a review and directions by the Court under sections 8(1) and 94(1) of the Trusts Act 1973 (Qld) in respect of a determination made by the trustees of the Boosey Doherty Superannuation Fund (the Fund) as to the payout of the residual death benefit of Anthony Vincent Williams under the Fund (the Determination), was dismissed. It was found that there were no proper grounds for the Court to review the Determination, in particular the trustees of the Fund had not failed to exercise real and genuine consideration in making the Determination.
• [2] The active respondents to the proceeding were the trustees of the Fund - James Robba and Morgan Lane, the second and third respondents (the Trustees).
• [3] The third respondent was not an active participant in the proceeding; nor have any submissions in respect of costs been made in relation to the third respondent. There will be no costs order in respect of the third respondent.
• [4] The successful Trustees seek a costs order that the applicants pay their costs of the proceeding on an indemnity basis. A costs order in favour of the Trustees is justified on the basis that costs usually follow the event; and an indemnity costs order is sought on the basis that correspondence on behalf of the Trustees before and after the proceeding was commenced warned the applicants of the lack of prospects of the proceeding and that indemnity costs would be sought if the applicants persisted with same and failed. Further, in the result, the Trustees say that the applicants continued the proceeding in disregard of the established law in Karger v Paul [1984] VicRp 13; [1984] VR 161.
• [5] The unsuccessful applicants seek a costs order that:

(a) the Trustees only be awarded costs of the proceeding on the standard basis because:

(i) the position taken by the applicants in the proceeding was not unreasonable;

(ii) on some issues in the proceeding, the arguments were finely balanced,

(iii) it was in fact an application brought by the applicants for the benefit of their disabled brother,

(b) the Trustees' costs be paid from the Fund because:

(i) of the matters in (a) above;

(ii) rejection of the Trustees' "offers" was reasonable in circumstances where what was offered was nothing less than complete surrender rather than a genuine compromise;

(iii) the applicants have their own costs to bear that were not incurred for their own benefit but for the possible benefit of their disabled brother.

• [6] The successful Trustees in response further say the that relatively modest amount of the Fund should not be depleted by an order that the Trustees' costs be paid out of the Fund. They also point out that the Trustees had no ability to compromise the proceeding - they had no power to review their own decision.
• [7] All of the matters mentioned in [4] - [6] are relevant factors to consider in respect of the question of costs, and certain of the factors pull in different directions.
• [8] In addition I have regard to the general principles that:

(a) the default position under the UCPR is that costs follow the event (rule 681(1));

(b) costs orders are not a mechanism to punish or penalise unsuccessful parties;[1]

(c) costs orders are to ultimately reflect what is in the interests of justice.[2]

• [9] Here I consider that the appropriate costs order, balancing all of the abovementioned relevant factors, is that the applicants pay the first and second respondents' costs of the proceeding on the standard basis.

[1] Armstrong v Boulton [1990] VicRp 20; [1990] VR 215 at 221 per the Court; Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543 per Mason CJ.

[2] West v Blackgrove [2012] QCA 321 at [49] per Muir JA, Holmes JA and Daubney J agreeing.