Chan v Waldemar Mazurkiewicz (in his capacity as Administrator of the Estate of Witold Mazurkiewicz)
[2015] WASC 432 (S)
•16 MARCH 2016
CHAN -v- WALDEMAR MAZURKIEWICZ (in his capacity as Administrator of the Estate of WITOLD MAZURKIEWICZ) [2015] WASC 432 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 432 (S) | |
| Case No: | CIV:3277/2011 | ON THE PAPERS | |
| Coram: | LE MIERE J | 16/03/16 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Each party bear their own costs | ||
| B | |||
| PDF Version |
| Parties: | SHIRLEY CHAN WALDEMAR MAZURKIEWICZ (in his capacity as Administrator of the Estate of WITOLD MAZURKIEWICZ) WALDEMAR MAZURKIEWICZ (in his capacity as Beneficiary of the Estate of WITOLD MAZURKIEWICZ) |
Catchwords: | Costs order Family provision claims Inducing conduct Turns on own facts |
Legislation: | Administration Act 1903 (WA), s 15 Rules of the Supreme Court 1971 (WA), O 66 r 1 Supreme Court Act 1935 (WA), s 37 |
Case References: | Board of Examiners v XY [2006] VSCA 190; (2006) 25 VAR 193 Chan v Waldemar Mazurkiewicz (as Administrator of the Estate) [2015] WASC 432 Dean v Collins [No 2] [2015] WASCA 151 Mitropoulos v Greek Orthodox Church and Community of Marrickville & District Ltd (1993) 10 ACSR 134 Naidoo v Williamson [2008] WASCA 179 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
The Estate of Witold Mazurkiewicz, retired late of 38 Siddons Way, Booragoon in the State of Western Australia (Dec)
- Plaintiff
AND
WALDEMAR MAZURKIEWICZ (in his capacity as Administrator of the Estate of WITOLD MAZURKIEWICZ)
First Defendant
WALDEMAR MAZURKIEWICZ (in his capacity as Beneficiary of the Estate of WITOLD MAZURKIEWICZ)
Second Defendant
Catchwords:
Costs order - Family provision claims - Inducing conduct - Turns on own facts
Legislation:
Administration Act 1903 (WA), s 15
Rules of the Supreme Court 1971 (WA), O 66 r 1
Supreme Court Act 1935 (WA), s 37
Result:
Each party bear their own costs
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
Plaintiff : Slater & Gordon Lawyers
First Defendant : Graeme A Ryan & Associates
Second Defendant : Graeme A Ryan & Associates
Case(s) referred to in judgment(s):
Board of Examiners v XY [2006] VSCA 190; (2006) 25 VAR 193
Chan v Waldemar Mazurkiewicz (as Administrator of the Estate) [2015] WASC 432
Dean v Collins [No 2] [2015] WASCA 151
Mitropoulos v Greek Orthodox Church and Community of Marrickville & District Ltd (1993) 10 ACSR 134
Naidoo v Williamson [2008] WASCA 179
1 LE MIERE J: Witold Mazurkiewicz died on 11 December 2010 leaving no children or relatives other than his brother, Waldemar Mazurkiewicz. Waldemar is the administrator of the estate of Witold. The plaintiff, Mrs Chan, claims that she and Witold lived as de facto partners at the time of his death and for a period of at least two years immediately before his death and hence pursuant to s 15(1) of the Administration Act 1903 (WA) she was entitled to the intestate property to which a wife would have been entitled had Witold died leaving a wife. I found that Mrs Chan had failed to establish that she and Witold lived as de facto partners at the time of his death and for a period of at least two years immediately before his death and dismissed her claim: Chan v Waldemar Mazurkiewicz (as Administrator of the Estate) [2015] WASC 432.
2 Waldemar is the first defendant in his capacity as administrator of the estate and the second defendant in his capacity as beneficiary of the estate. Waldemar seeks an order that the plaintiff pay the defendants' costs of the action. Mrs Chan seeks an order that the costs of the parties be paid from the estate or in the alternative there be no order as to costs.
Legal principles
3 The power to make a costs order comes from s 37(1) of the Supreme Court Act 1935 (WA) which provides relevantly that subject to the provisions of the Act and to the rules of court the costs of and incidental to all proceedings in the court shall be in the discretion of the court or judge and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid. Order 66 rule 1(1) of the Rules of the Supreme Court 1971 (WA) provides that subject to the express provisions of any statute and of the rules the costs of and incidental to all proceedings shall be in the discretion of the court but, without limiting the general discretion conferred on the court by the Act, and subject to O 66, the court will generally order that the successful party to any action or matter recover his costs. The discretion is very wide. The only fetters are those provided elsewhere in the Act and the Rules, or any other Act, and the fact that the discretion must be exercised judicially: Naidoo v Williamson [2008] WASCA 179 [39] (Steytler P).
4 In her written submissions the plaintiff referred to her impecuniosity or lack of financial resources. Courts are disinclined to consider the financial position of a party as a relevant matter in the exercise of the costs discretion: Board of Examiners v XY [2006] VSCA 190; (2006) 25 VAR 193, 208 [36] (Chernov JA, Nettle and Neaves JJA agreeing).
5 The plaintiff referred to dicta that the usual rule as to costs is often departed from in family provision cases. In years past the costs of family provision proceedings were often ordered to be paid out of the estate, even in the case of unsuccessful plaintiffs. However, in Dean v Collins [No 2] [2015] WASCA 151 [34] the Court of Appeal stated that it is the general policy of the court to order costs against unsuccessful claimants or beneficiaries in family provision claims.
6 A court may refuse costs to a successful defendant who has, by inducing the plaintiff to believe that she had a good cause of action, or by some other act or omission, led the plaintiff to bring the action, where aside from the defendant's inducing conduct, the action would in all likelihood not have been brought. For example, in Mitropoulos v Greek Orthodox Church and Community of Marrickville & District Ltd (1993) 10 ACSR 134, 139 McLelland J held that the conduct of the defendant was such as to encourage the plaintiffs to believe that they had a valid claim to relief in the proceedings and that for that reason there should be no order against the plaintiffs in respect of the defendant's costs.
Exercise of discretion
7 I turn to the relevant circumstances of this case. The case involved questions of judgment applied to broad concepts such as the degree of mutual commitment to a shared life. It is not a case of which it can be properly said that it ought not to have been brought.
8 Mrs Chan and Witold lived together in a marriage-like relationship for 15 years from 1993 until Witold moved back to the Booragoon house to look after his estranged wife in 2008. Witold and Mrs Chan maintained a friendship in 2009 and 2010. Witold visited Mrs Chan at her Ferndale house and occasionally stayed with her overnight and Mrs Chan visited Witold at his Booragoon house and occasionally stayed with him. Witold found and gave to Mrs Chan the address of somebody to repair the roof of her Ferndale house. Mrs Chan supported Witold by occasionally visiting him and in particular in July and August 2010 taking him to hospital, visiting him there, and taking him back to his home at Booragoon when he was discharged from hospital.
9 In 2010 Witold looked for a companion on the internet and started a relationship with Elzbieta. From the time Elzbieta arrived in Perth in September 2010 Witold and Mrs Chan did not see each other apart from relatively short visits by Witold to Mrs Chan at Ferndale. Witold was not open with Mrs Chan about his relationship with Elzbieta or his relationship with Mrs Chan. Witold did not tell Mrs Chan that he intended to end the relationship between them. I accept that Mrs Chan believed that she and Witold maintained a special relationship. If it was not for Witold's conduct inducing Mrs Chan's erroneous appreciation of the relationship between them, Mrs Chan would not have brought this proceeding.
10 Those matters lead me to the conclusion that Mrs Chan ought not be required to bear the costs of Witold's estate or the costs of the beneficiary of the estate, Waldemar. Nevertheless, Mrs Chan made a decision to bring this proceeding and to incur the costs of doing so. That decision has cost the estate. In the circumstances Mrs Chan should not further burden the estate with the costs of her own erroneous decision. In my opinion, therefore, the just result in this case is to order that each party bear their own costs. I would have ordered that the defendants' costs be paid out of the estate but for the fact that Waldemar has distributed the estate to himself and so no purpose would be served by such an order.
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