Alympic v Alympic (No 2)

Case [2023] SASC 172

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

ALYMPIC v ALYMPIC (No 2)

[2023] SASC 172

Judgment of Auxiliary Judge Norman a Master of the Supreme Court  

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS

Application for costs and disbursements of the proceedings to be paid by the respondent on an indemnity basis or alternative orders for payment on a lump sum without recourse to an indemnity from a deceased estate, including costs and disbursements incurred prior to the issue of proceedings.

Costs of proceedings awarded on an indemnity basis, pre action costs awarded on a standard costs basis, costs assessed in a lump sum.

Uniform Civil Rules 2020 (SA); Supreme Court Act 1935 (SA), referred to.
Fielder v Burgess [2014] SASC 98; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; IB Consulting v Dare Sutton Clarke Pty Ltd [2002] SASC 342; Shanamere Pty Ltd v Litigation Support Services Pty Ltd [2006] SASC 12; Steicke v Pederick & Anor (No 2) [2020] SASCFC 13; Mandeville v Better Lending Pty Ltd & Anor (No 2) [2021] SASCA 61; Cachia v Hanes (1991) 23 NSWLR 304; Ragata Developments Pty Ltd v Westpac Banking Corporation Federal Court of Australia 5 March 1993, unreported; Re Amuso (No 2) [2021] SASC 61; In the Estate of Wenham (No 2) [2023] SASC 135; Societe Anonyme Pecheries Ostendaises v Merchants Marine Insurance Co [1928] 1 KB 750; Ross v Caunters [1980] Ch 297; Frankenburg v Famous Lasky Film Service Ltd [1931] 1 Ch 428; Re Gibson’s Settlement Trusts [1981] 1 Ch 179; National Westminster Bank Plc v Kotonou [2009] EWHC 3309 (Ch); Gee, Re the Estate of [2022] EWHC 1590 (Ch); Mackenzie Real Estate Pty Ltd v Cenna Pty Ltd [2007] SADC 101; State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174; W Win Engineering Pty Ltd v Wiggins [2016] FCA 967; Ardalich v Ardalich District Court, Master Olsson, Reasons delivered 22 June 2021 (unreported); Crossley v South Australia (No 3) [2020] SADC 89; The Corporation Of The City Of Campbelltown v Caltex Petroleum P/L (No 2) [2019] SAERDC 24; Bitzer Australia Pty Ltd v Japp [2014] FCA 1040; Comcare v Labathas & McMahon (1995) 61 FCR 149; Schweppes' Limited v Archer (1934) 34 SR (NSW) 178; Higgins v Nicol (No 2) (1972) 21 FLR 34; Masson Templier & Co v De Fries [1910] 1 KB 535; Viscariello v Macks (No 4) [2022] SASC 30; Leocon Pty Ltd v Angus Clyne Australia Pty Ltd [2022] SADC 104; Gallagher v CSR Ltd No 940164, 31 March 1994, unreported; Smoothpool v Pickering [2001] SASC 131; Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673; Koonara Management Pty Ltd v Rockliff (No 3) [2020] FCA 523; Bayley & Associates Pty Ltd v DBR Australia Pty Ltd [2014] FCA 346; Tamaya Resourtces Ltd…

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AGLC
Alympic v Alympic (No 2) [2023] SASC 172
Case
[2023] SASC 172
Decision Date

CaseChat Overview and Summary

In the case of Alympic v Alympic (No 2), the applicant sought an order for costs associated with proceedings that had previously been filed against the respondent for the revocation of the grant of probate and the appointment of the applicant as the sole executor of the estate of a deceased person. The proceedings had been initiated due to the respondent’s continued occupation of a property beyond the permitted period outlined in the will, her refusal to vacate the premises, and her obstructive conduct regarding the sale of the property. The court was required to determine the appropriate costs to be awarded to the applicant, considering the nature of the dispute and the conduct of the parties involved.

The primary legal issue before the court was the quantum of costs to be awarded to the applicant. The applicant's counsel argued that the costs incurred should not burden the estate and its beneficiaries, as the respondent, who would be entitled to a share of the estate upon its sale, had been uncooperative and obstructive. The court needed to assess the costs claimed, considering the circumstances of the case and the principles of cost allocation in similar disputes.

In its decision, the court reviewed the affidavits and submissions from both parties and found that the respondent had been uncooperative and obstructive in respect of the sale of the property. The court relied on the previous findings that the respondent had continued to reside at the property beyond the allowed period, had refused to vacate the premises, and had hindered the due administration of the estate. The court applied a discount to the claimed costs based on the principles established in previous cases, considering the sustained misconduct of the respondent. The court concluded that the costs incurred by the applicant were necessary to compel the respondent to comply with her duties as an executor and that the estate should not bear the burden of these costs.

The court ordered that the costs claimed by the applicant be paid by the respondent, subject to a discount. The discount applied was based on the specific circumstances of the case and the principles of cost allocation in similar disputes. The court also noted that any costs order made against the respondent should be set off against her interest in the estate.

Orders

Orders of the court

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Background

Background to the litigation

The application came on for argument before me on 27 September 2023 when Mr M Taylor of counsel appeared for the applicant and Mr J White SC of counsel appeared for the respondent. Background The proceedings were commenced on 13 May 2022 supported by affidavits of the applicant sworn on 9 May 2022 and of his solicitor, Ms Karagiannis, sworn on 29 August 2022. An asset of the estate is a property at 28 Robinson Road, Stanley Flat 5453 (“the property”). The will provided that the respondent had the right to live at the property until 1 December 2017, however she continued to live there after that date and the proceedings sought orders that the grant of probate to her and the applicant be revoked and that she be passed over as executor and that he be granted probate as sole executor. In a response filed 11 May 2022 the respondent sought that the application be dismissed, that she be allowed to purchase the property pursuant to the Will of the deceased at such value as agreed between the parties or at a price to be determined by formal valuation, and with the beneficiaries receiving such share of the estate as appropriate. She relied on an affidavit sworn by her on 10 July 2022. At a hearing on 27 September 2022, I heard oral submissions from the parties (the respondent appearing by telephone link). Further submissions were received at a re-convened hearing on 1 December 2022. On 19 January 2023 I published reasons and made orders that the grant of probate made on 15 March 2017 to the applicant and the respondent in relation to the estate of the deceased be revoked; that the respondent be passed over as executor; that there be a grant of probate of the will to the applicant; that the applicant was advised and directed to do all things necessary to transmit the title to the property into his sole name as legal personal representative and to seek vacant possession of the property, and for the removal of a Caveat 13066243 which had been lodged by the respondent on 15 February 2019 over the property. Costs were reserved with liberty to apply. In my reasons, I found that a history had been shown of the respondent being uncooperative and obstructive in respect to the sale of the property. Notwithstanding the provisions in the deceased’s will allowing her to reside at the property for 12 months after his death, she had resided and continued to reside there after that period had expired without paying rent, she had advised that she did not wish to vacate, and she had later written to the beneficiaries informing them that she was not moving out and that they would need to convince a judge at the expense of the estate why she needed to be removed. The situation remained unresolved for a considerable time. Notwithstanding that the respondent offered to purchase the property, subject to finance, she had been unable to provide proof thereof and that matter had not been taken further, and she had also refused to allow real estate agents access to the property. I found that the applicant had had no choice but to issue the proceedings, that he had established a departure by the respondent from her duties as an executor, that a course of conduct by her had frustrated, delayed and prevented the due administration of the estate over several years, and that the position would not be resolved without the intervention of the Court. In these circumstances, the due and proper administration of the estate required the revocation of the grant of probate, a passing over of the respondent, and the appointment of the applicant as executor, and orders were made accordingly. Affidavit evidence provided by the applicant in support of the application

Evidence

Evidence Before The Court

In my reasons, I found that a history had been shown of the respondent being uncooperative and obstructive in respect to the sale of the property. Notwithstanding the provisions in the deceased’s will allowing her to reside at the property for 12 months after his death, she had resided and continued to reside there after that period had expired without paying rent, she had advised that she did not wish to vacate, and she had later written to the beneficiaries informing them that she was not moving out and that they would need to convince a judge at the expense of the estate why she needed to be removed. The situation remained unresolved for a considerable time. Notwithstanding that the respondent offered to purchase the property, subject to finance, she had been unable to provide proof thereof and that matter had not been taken further, and she had also refused to allow real estate agents access to the property. I found that the applicant had had no choice but to issue the proceedings, that he had established a departure by the respondent from her duties as an executor, that a course of conduct by her had frustrated, delayed and prevented the due administration of the estate over several years, and that the position would not be resolved without the intervention of the Court. In these circumstances, the due and proper administration of the estate required the revocation of the grant of probate, a passing over of the respondent, and the appointment of the applicant as executor, and orders were made accordingly. Affidavit evidence provided by the applicant in support of the application The second affidavit of Ms Karagiannis referred to the grant of probate in the matter and the orders subsequently made by the Court. As costs had been reserved, the applicant sought that these be determined. She referred to the issue of the proceedings by the applicant on 13 May 2022 and testified as to the solicitors’ charges, counsel fees, and other disbursements incurred during the various phases of those proceedings, including pre-action, the substantive proceedings themselves, and the subsequent present costs application. Ms Karagiannis submitted that the estate and its beneficiaries should not be burdened by the costs incurred in compelling the respondent to comply with her duties at law. As she would be entitled to a share of the estate upon its sale and realisation, an order was sought that any costs order made against her be set off against her interest in the estate. In her third affidavit, Ms Karagiannis exhibited a schedule and provided copies of invoices of the applicant’s solicitors Treloar & Treloar issued from 11 May 2022 to 30 January 2023 and from 23 December 2019 to 21 March 2022 (redacted in relation to privilege in parts). These were in itemised form, setting out the dates of attendance, a description of the professional services rendered, and dollar amounts for each of these. There is a listing of disbursements incurred and their nature and date. They closely resemble the form of a “long form bill” under the provisions of the UCR.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Various discounting has been applied to a claim for costs on a lump sum basis, depending on the circumstances of each case. In Sparnon v Apand Pty Ltd[39] and in Auspine Ltd v Australian Newsprint Mills Ltd[40] this was fixed at 15%, and in Cornwall v Rowan (No 4)[41] a discount range of 10–50% was fixed for solicitor’s costs, a range of between 10% and 30% for counsel fees, and 20% for disbursements other than counsel fees. In Wide Bay Conservation Council Incv Burnett Water Pty Ltd (No 9),[42] Logan J applied a discount of 40% for solicitors’ costs and of 20% for the photocopying component. In Thompson v Department of Environment and Conservation (No 2)[43] Barker J commenced with an estimate of the parties’ costs and then applied a discount of 33.5%. He observed that in assessing the gross sum the court would take a broader brush than the view of a taxation of costs, while noting that an arbitrary discount was something the court should caution against when making the gross sum estimate. Consideration[39] FCA, von Doussa J, No SG28/94, 4 March 1998, unreported.[40] (1999) 93 FCR 1.[41] [2006] SASC 111.[42] [2011] FCA 661.[43] [2011] FCA 970.General observations In support of his claim for costs the applicant has filed affidavits and submissions in relation to the approach to be taken. These, in effect seek to characterise a sustained course of misconduct of the respondent. I accept the submissions of the respondent’s counsel that it would be inappropriate for the court to make any finding or to characterise her conduct for any purpose other than to rely on the orders already made, as to do so would require an enquiry into her motives and intentions. I rely, accordingly, on the findings made in the substantive proceedings which are set out in paras [78] to [84] of my previous reasons. These, in summary, found that the respondent had been un-cooperative and obstructive in respect of the sale of the property both before and after the institution of the proceedings. In particular, notwithstanding the provisions in the will allowing her to reside at the property for 12 months after his death, she had resided and continued to reside there after that period had expired, without paying rent, she had advised through her solicitors that she did not wish to vacate, and she had later written to the beneficiaries informing them that she was not moving out and that they would need to convince a judge at the expense of the estate why she needed to be removed. The situation had accordingly remained unresolved since then, with a long history of unfruitful communications. On 10 November 2020 the respondent had emailed the applicant suggesting that the property be put on the market, to which the applicant had requested dates for an agent to access the property, but she had not allowed access. Later, she had offered to purchase the property subject to finance being approved, but she was unable to provide proof thereof, and this had led to a fresh valuation of the property being obtained by the applicant's solicitor. She had made no efforts to identify any issues with that valuation report, nor had she commissioned another valuation. As a last resort, prior to the issue of proceedings on 13 May 2022, the applicant had on 2 February 2022 put his case, summarising the position, again asserting breaches of duty by the respondent, and giving notice of the forthcoming legal proceedings against her. Her response in a text message, was noted in my reasons with the observation that this was not one befitting an executor of an estate.