Cekan v Magiera (No 2)

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.