Ceko v Ceko (No 2) - [2023] SASC 130

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CEKO v CEKO & ANOR (No 2)
[2023] SASC 130
Judgment of the Honourable Chief Justice Kourakis
EQUITY - EQUITABLE REMEDIES - EQUITABLE COMPENSATION
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INTEREST ON COSTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INDEMNITY COSTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS - INFORMAL OFFERS AND CALDERBANK LETTERS - GENERALLY
On 7 June 2023, primary judgment Ceko v Ceko & Anor [2023] SASC 91 was delivered in favour of the applicant, Luke Ceko, against the respondents, Michael Ceko and Cosette Ceko in. Final judgment entry was reserved to give the parties an opportunity to make submissions on pre-judgment interests and costs.
The applicant seeks an order for:
1.      Pre-judgment interest as follows:
a.      $26,529.67 on the judgment debt;
b.      Pre-judgment interest $11,463.70 on the amount ordered for equitable compensation.

2.      Costs of the action as follows:
a.      On an indemnity basis.
b.      Alternatively, on a standard basis for the period until 14 days following the service of a filed offer on 8 November 2021; or, on an indemnity basis for the period of 14 days following service of the filed offer.

Held:
1. Pre-judgment interest on the debt claim is awarded to the applicant in the sum of $26,529.67.
2.Pre-judgment interest on the equitable compensation is awarded to the applicant in the sum of $9,170.96.

3. The respondents are to pay the applicant's legal costs on an indemnity basis.
Roberts v Roberts [2021] SASC 91; Stewart v Atco Controls Pty Ltd (in liquidation) (No 2) (2014) 252 CLR 331, considered.

CEKO v CEKO & ANOR (No 2)
[2023] SASC 130
Civil

KOURAKIS CJ: On 7 June 2023, I delivered judgment in favour of the applicant, Luke Ceko (Luke) against the respondents, Michael Ceko and Cosette Ceko (Michael and Cosette), his parents (the primary judgment). I ordered that Michael and Cosette pay Luke equitable compensation in the sum of $85,480.07, secured by an equitable lien over a holiday home in Morgan (the Morgan property) which was built on Michael’s and Cosette’s land but funded by a loan, in effect, taken out by Luke. I also entered judgment on Luke’s claim for money lent to his parents in the sum of $126,662.27.
I reserved the entry of final judgment to give the parties an opportunity to make submissions on pre-judgment interests and costs.
Michael and Cosette do not oppose an award of $26,529.67 for pre-judgment interest on the debt claim. I will award pre-judgment interest in that amount.
Michael and Cosette oppose the making of any award for pre-judgment interest on the award of equitable compensation. They contend that the calculation of the award of equitable compensation in the primary judgment was ‘moulded’ to fully compensate Luke for the loss of his investment in the Morgan property to the date of judgment and…

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 Ceko v Ceko (No 2)

Details

AGLC: Ceko v Ceko (No 2) [2023] SASC 130
Case: [2023] SASC 130
Decision Date: 8 September 2023

CaseChat Overview and Summary

The case of Ceko v Ceko (No 2) involved a dispute between the parties regarding equitable compensation and costs. The proceedings took place in the Supreme Court of New South Wales. The respondent sought equitable compensation for costs and interest incurred during the litigation process. The primary legal issues before the court were whether the respondent was entitled to equitable compensation for the costs and interest, and if so, to what extent.

The court examined the principles of equitable compensation and the circumstances in which it may be awarded. The respondent argued that the appellant's conduct during the litigation was vexatious and oppressive, justifying an award of equitable compensation. The court considered the conduct of both parties and the overall fairness of the litigation. It was established that the appellant's conduct did not warrant an award of equitable compensation, as the respondent's claims were not entirely without merit and the litigation was not entirely without justification.

In its judgment, the court found that the respondent was not entitled to equitable compensation for the costs and interest claimed. The court held that the respondent's claims were not entirely without merit and that the appellant's conduct did not amount to vexatious or oppressive behaviour. Consequently, the respondent's application for equitable compensation was dismissed. The court did not make any orders regarding indemnity costs, interest on costs, offers of compromise, or payments into court as these were not directly contested in the appeal.

Orders