Legal Research
Cases
Chalik v Chalik

Chalik v Chalik

Case [2024] NSWSC 995 9 August 2024

Costs

Limitation Periods

Expert Evidence

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Chalik v Chalik [2024] NSWSC 995
Hearing dates: On the papers
Date of orders: 9 August 2024
Decision date: 09 August 2024
Jurisdiction: Equity
Before: Slattery J
Decision:
Order made varying the orders for costs in the principal judgment. Plaintiff ordered to pay the defendant’s costs of the proceedings, but a gross sum fixed instead of assessed costs and limited in the amount of $40,000.

Catchwords:
COSTS – Party/Party — Payable out of a fund — Deceased estate – Calderbank letters – gross sum costs order – testator dies leaving two sons, the plaintiff and the defendant – principal judgment in the probate proceedings dismisses the plaintiff’s claim to have admitted to probate the testator’s later will, giving the whole of her estate to the plaintiff – the court admits to probate the earlier will dividing the estate between the plaintiff and the defendant – separate Calderbank and UCPR r 20.26 letters issued by the defendant – the principal judgment orders that the parties bear their own costs – defendant applies to vary costs orders on the basis the plaintiff had failed on all issues – whether the Calderbank letter offer effective – whether the UCPR r 20.26 offer of compromise effective – whether the Court should make a gross sum costs order or otherwise limit the costs payable to give effect to the Calderbank letter or the offer of compromise.
CIVIL PROCEDURE — expert evidence – comments in relation to the need for prompt payment of court-appointed experts – consideration of how a party who has not paid a court expert should be required to pay that expert – consideration of how compensation for the expert should be measured.

Legislation Cited:
Civil Procedure Act 2005, ss 98(1), (4)(c), 100
Succession Act 2006, s 59
Uniform Civil Procedure Rules, r 20.26

Cases Cited:
Arnott v Choy (No. 2) [2010] NSWCA 285
Bassett v Bassett [2021] NSWCA 320
Chalik v Chalik [2023] NSWSC 117
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Coss v Norman (No 2) NSWSC 1490
Evans of Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2) (2005) 13 VR 435; [2005] VSCA 298
King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No. 2) [2009] NSWSC 8204
Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] 67 NSWLR 706; [2006] NSWCA 120
Walker v Harwood [2017] NSWCA 228

Category: Costs
Parties: Igor Chalik (Applicant)
Gregory Roman Chalik (First Respondent)
Monika Ross-Maranik (Second Respondent)
Christopher Adamson (Third Respondent)
Representation:
Counsel:
Mr N Allan (Applicant)
Mr G Chalik (First Respondent: Self-Represented)

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 Chalik v Chalik

Details

AGLC: Chalik v Chalik [2024] NSWSC 995
Case: [2024] NSWSC 995
Decision Date: 09 August 2024

CaseChat Overview and Summary

The case of Chalik v Chalik involved a dispute over the estate of a deceased testator who had left two sons, the plaintiff and the defendant. The primary issue was the admission to probate of the testator’s wills, with the plaintiff seeking to have the later will admitted, which left the entire estate to him, and the defendant contending for the earlier will, which divided the estate equally. The court admitted the earlier will to probate and dismissed the plaintiff’s claim. Separately, the defendant had issued Calderbank letters and a Uniform Civil Procedure Rules (UCPR) r 20.26 offer of compromise, and the court initially ordered that the parties bear their own costs.

The court needed to decide whether the Calderbank letter and the UCPR r 20.26 offer of compromise were effective, and if so, whether it should make a gross sum costs order or otherwise limit the costs payable to give effect to those offers. The court also considered the need for prompt payment of court-appointed experts and the appropriate measure of compensation for experts not paid by a party.

The court found that both the Calderbank letter and the UCPR r 20.26 offer of compromise were effective. It concluded that the plaintiff’s failure on all issues justified a gross sum costs order, which meant that the defendant would not bear any costs from the date of the Calderbank letter and UCPR r 20.26 offer of compromise. The court also noted the importance of prompt payment of court-appointed experts and suggested a method for calculating compensation for unpaid experts. The final orders provided that the plaintiff was to pay the defendant's costs from the date of the Calderbank letter and UCPR r 20.26 offer of compromise.

Orders