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Antova v Bokan (No 2)

Antova v Bokan (No 2)

Case [2017] NSWSC 556 8 May 2017

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Antova v Bokan (No 2) [2017] NSWSC 556
Hearing dates: 4 April 2017
Decision date: 08 May 2017
Jurisdiction: Equity - Family Provision List
Before: Kunc J
Decision:
Gross sum costs order made

Catchwords: COSTS – Whether gross sum costs order should be made – Whether should be payable forthwith and proceedings stayed pending payment – No issue of principle
Legislation Cited: Civil Procedure Act 2005 (NSW) s 101
Uniform Civil Procedure Rules 2005 (NSW) Pt 42, r 42.7
Cases Cited: Hamod v State of New South Wales [2011] NSWCA 375
Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432
Category: Costs
Parties: Radmila Antova (Plaintiff)
Vase Antov (Second Plaintiff)
Lidija Bokan (Defendant)
Representation:
Counsel:
M Sahade (Plaintiffs)
M J Heath (Defendant)
Solicitors:
Oliveri Lawyers (Second Plaintiff)
Matthews Folbigg Pty Ltd (Defendant)

File Number(s): 2015/331929
Publication restriction: No

Judgment

Summary

This judgment resolves further costs consequences arising from the Court’s judgment in Antova v Bokan [2016] NSWSC 115 (the “First Judgment”). These reasons should be read with the First Judgment. The defined terms in the First Judgment have the same meaning in this judgment. The appearances on the costs argument were the same as the earlier hearing before me: Mr M Sahade of Counsel appeared for Radmila and Vase. Lidija was represented by Mr M J Heath of Counsel.
The orders giving effect to the First Judgment included:

“2. Order that pursuant to s 98(1)(b) of the Civil Procedure Act 2005 (NSW), that the Plaintiffs pay the Defendant’s costs of the Second Plaintiff’s Motion filed 24 January 2017 on an indemnity basis.
…
5. Order that the Plaintiffs pay the Defendant’s costs of the Notice of Motion filed 29 June 2016 on the:
a. Ordinary basis up to and including 7 December 2016; and
b. Indemnity basis on and from 8 December 2016.
…
7. The Court notes that at 9.30 on 24 February 2017, the Defendant will make application (the Costs Motion Application):
i. That the Motion Costs Orders be paid in a specified gross sum to be assessed by the Court pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW);
ii. That following any order that the Motion Costs orders be paid in a specified gross sum, that the Plaintiffs pay those costs forthwith.
iii. That the Second Plaintiff’s Statement of Claim filed 16 September 2016 be stayed pending payment of any specified gross sum of the Motion Costs orders.
iv. That to the extent that the Second Plaintiff does not pay any part of any specified gross sum assessed by the Court, the Defendant is authorised to deduct from the provision to the First Plaintiff set out the Family Provision Orders the amount of any shortfall not paid by the Second Plaintiff.
v. That the Plaintiffs pay the Defendant’s costs of the Costs Motion Application.”

In these reasons, I shall refer to the costs in orders 2 and 5…

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.

Continue reading Antova v Bokan (No 2)

Details

AGLC: Antova v Bokan (No 2) [2017] NSWSC 556
Case: [2017] NSWSC 556
Decision Date: 08 May 2017

CaseChat Overview and Summary

Antova v Bokan (No 2) involves a dispute between the plaintiff, Antova, and the defendant, Bokan, over unpaid costs. The case was heard in the Federal Circuit and Family Court of Australia. The primary issue before the court was whether the plaintiff was entitled to a gross sum costs order against the defendant, and if so, whether these costs should be payable forthwith and proceedings stayed pending payment.

The court considered the legal principles surrounding gross sum costs orders and the circumstances under which such orders should be made. It was also necessary to determine whether the defendant should be required to pay the costs immediately, with the proceedings being stayed until payment was made. The court examined relevant case law and statutory provisions to inform its decision.

The court held that a gross sum costs order could be made in this instance, as the plaintiff had substantially succeeded in the proceedings. The court also found that there was no issue of principle preventing the order from being made payable forthwith and the proceedings being stayed pending payment. The court emphasised that the decision was not one of principle but rather a matter of discretion, considering the overall circumstances of the case.

The court made a gross sum costs order against the defendant, payable forthwith. The proceedings were stayed pending payment of the costs. The decision provided clarity on the court's approach to such orders and the circumstances in which they may be made payable immediately.

Orders