Alabakis v Alabakis (Costs) - [2012] VSC 496

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. SCI 2010 3902

IN THE MATTER OF Part IV of the Administration and Probate Act1958

and

IN THE MATTER OF the Will and Estate of Theodoros ALABAKIS (Deceased)

B E T W E E N

PAULINE ALABAKIS

Plaintiff

THOMAS ALABAKIS (who is sued in his capacity as the Proving Executor and Trustee of the Will and Estate of the abovenamed Deceased)

and

ALEXANDER ALABAKIS

First Defendant

Second Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2012
DATE OF JUDGMENT:	25 October 2012
CASE MAY BE CITED AS:	Alabakis v Alabakis & Anor (Costs)
MEDIUM NEUTRAL CITATION:	[2012] VSC 496

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COSTS – Proceeding under Part IV of Administration and Probate Act 1958 – Judgment for plaintiff – Whether costs of second defendant were to be paid by plaintiff where issue in respect of second defendant abandoned by plaintiff during trial – Whether Calderbank offer made – Costs of second defendant apportioned between plaintiff and estate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Pitt	William Murray Solicitors
For the First Defendant	Mr R Miller	GSM Lawyers
For the Second Defendant	Mr M Goldblatt	Kempsons Hall & Thompson Lawyers

HIS HONOUR:

Introduction

On 21 September 2012, I published my reasons for judgment[1] in which I held that the plaintiff, Pauline Alabakis, was entitled to further provision out of the estate of Theodoros Alabakis in the sum of $475,000. I invited the parties to agree the consequential orders. Agreement has been substantial but there remain some areas of dispute.
[1]Alabakis v Alabakis & Anor [2012] VSC 437 (Reasons)

The most significant area of dispute concerns the costs and expenses of Alexander Alabakis of the proceeding. Pauline’s claim was defended not only by the executor of the estate, Thomas Alabakis, but also by Alexander: the brother of Thomas and stepbrother of Pauline. Since being joined to the proceeding, by order of Associate Justice Zammit made on 18 May 2011, Alexander has been represented separately by solicitors and counsel. At trial he was represented by Mr Goldblatt of counsel; Mr Millar appeared for the executor, Thomas.

Both Alexander and Thomas contend that Pauline should pay Alexander’s costs of the proceeding (as between solicitor and client) whereas Pauline contends that Alexander’s costs should be taxed and paid out of the estate. If Pauline is not to pay Alexander’s costs, there is no dispute that his costs should otherwise be paid out of the estate.

The other area of disagreement concerns whether I should make orders certifying for the appearance of two counsel for the plaintiff and that the costs of the plaintiff include the costs of transcript.

Section 97(6) of the Administration and Probate Act 1958 specifically addresses the Court’s power to make a costs order in relation to an application for further provision out of an estate brought under s 91. The subsection provides:

(6)Subject to subsection (7) the Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] VSC 496
Decision Date: 25 October 2012

CaseChat Overview and Summary

The case involved a proceeding under Part IV of the Administration and Probate Act 1958. The plaintiff, who was awarded judgment, sought to recover costs from the second defendant. The dispute arose over whether the plaintiff should bear the second defendant's costs, considering that the plaintiff had abandoned an issue concerning the second defendant during the trial. Additionally, the court had to determine if a Calderbank offer had been made, and if so, whether it affected the costs order.

The legal issues before the court included the application of the law regarding costs in probate proceedings, particularly focusing on the principle that a party who abandons an issue during trial should not be entitled to recover costs related to that issue from the other party. The court also had to consider whether the Calderbank offer influenced the apportionment of costs between the plaintiff and the estate.

In delivering the judgment, the court held that the plaintiff was not entitled to recover the costs of the second defendant, as the plaintiff had abandoned the issue concerning the second defendant. The court noted that a Calderbank offer had been made but did not impact the principle that costs should be apportioned according to the issues actually litigated. Consequently, the court ordered that the costs of the second defendant were to be apportioned between the plaintiff and the estate.

Orders