Cekan v Magiera (No 2) - [2023] SASCA 144

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
CEKAN v MAGIERA & ANOR (No 2)
[2023] SASCA 144
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
22 December 2023
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - COSTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - PARTIAL SUCCESS
The appellant appealed against a decision of a single judge of this Court, dismissing an application to revoke a grant of probate in solemn form. The will, dated 28 September 2016 (‘the 2016 will’) appoints the respondents as executors. It directs them to hold the deceased’s estate on trust in two equal parts for the Polish Church Incorporated and the Voice of the Martyrs Australia Ltd.
A further will dated 20 April 2018 (‘the 2018 will’) appoints the appellant as sole executor, and instructs that $25,000 be bequeathed to each of the Polish Church Incorporated and the Voice of the Martyrs Australia Ltd and that the respondent be the sole residual beneficiary of the estate.
On 23 November 2023 this Court set aside the orders of the primary judge and ordered that the grant of probate in solemn form of the 2016 will be revoked.
The parties now seek competing orders for costs.

The appellant seeks orders that the respondents pay the appellant’s cost of the appeal on a standard costs basis without recourse to the estate.
The respondents seeks orders that the appellant pay the respondent’s costs of the proceedings before the primary judge and the Court of Appeal until 15 September 2023 on an indemnity basis without recourse to the estate.
Held (by the Court):
1.The appellant’s costs of the appeal are to be paid out of the estate on the standard costs basis.
2.The respondent’s costs of the appeal are to be paid out of the estate on an indemnity costs basis.
3.This Court and the parties are required to conduct litigation in accordance with the rules of the Court. The costs orders that were made in favour of the respondents on 8 September 2023 must be met by the appellant without recourse to the estate.
4.The costs of the proceedings before the primary judge are reserved until the final resolution of the matter.

Probate Rules 2015 (SA) r 51(4); Uniform Civil Rules 2020 (SA) rr 1.5, 3.1, 3.1(1)(i), 3.1(1)(k), 3.2(2), 3.2(3), 3.2(3)(b), 146.1, 211.4, 218.13(1), 218.13(3), referred to.
Cekan v Magiera & Anor [2023] SASCA 124; Hegarty v Keogh [2021] SASCA 46; Magiera & Anor v Cekan [2023] SASC 20; Mitchell v Gard (1863) 3 Sw & Tr 275; Moloney v Hayward & Ors (No 2) [2023] SASC 36; Nobarani v Mariconte (No 2) [2018] HCA 49; Re Herbert Brothers Deceased (1990) 101 FLR 279; Roche v Roche (No 2) [2017] SASC 75; Thomas v Nash (No 2) [2010] SASC 171, considered.

CEKAN v MAGIERA & ANOR (No…

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 Cekan v Magiera (No 2)

Details

AGLC: Cekan v Magiera (No 2) [2023] SASCA 144
Case: [2023] SASCA 144
Decision Date: 22 December 2023

CaseChat Overview and Summary

This matter concerned an appeal before the Court of Appeal of South Australia, brought by the appellant against the respondents. The dispute arose from a previous decision of the primary judge, and the appeal involved issues relating to the conduct of the proceedings and the ultimate costs orders.

The Court of Appeal was required to determine whether to dismiss the appeal due to the appellant's failure to comply with the court's timetable, and to consider the appropriate costs orders given the partial success of the appellant and the conduct of the parties during the appeal process.

The Court acknowledged that the appellant's failure to comply with the timetable risked prejudicing the proper and expeditious conduct of the appeal, and that the respondents had a valid basis for seeking dismissal. However, the appeal was not dismissed due to the appellant's late appearance. Despite the appellant ultimately succeeding on appeal, the Court found that the respondents had incurred unnecessary time and costs due to the need to schedule the hearing on two occasions. Consequently, the Court ordered that the appellant's costs of the appeal be paid out of the estate on a standard basis, while the respondents' costs of the appeal were to be paid out of the estate on an indemnity basis. Furthermore, the appellant was personally liable for the costs orders made by the Court on 8 September 2023, without recourse to the estate. The costs of the proceedings before the primary judge were reserved.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

When a matter is set down for hearing before the Court of Appeal, it may be accepted that any failure to comply with the timetable set during the callover risks prejudicing the proper and expeditious conduct of the appeal. That is what happened in this case. There was merit in the respondents’ application to dismiss and orders were not made only because of the belated appearance by the appellant. And, although the appellant ultimately succeeded, the respondents were put to unnecessary time and costs associated with the need to set two dates for the hearing of this appeal. That burden on the respondents was reflected in the orders made by this Court on 8 September 2023. The appellant must pay those costs without recourse to the estate.Conclusion The Court orders as follows:1.The appellant’s costs of the appeal are to be paid out of the estate on the standard costs basis.2.The respondents’ costs of the appeal are to be paid out of the estate on an indemnity costs basis.3.The appellant must meet the orders for costs made by this Court on 8 September 2023 without recourse to the estate.4.The costs of the proceedings before the primary judge are reserved until the final resolution of this matter.

Ratio Decidendi

Legal Principle Established

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