Cicvaric v Blazevic (No 2) - [2024] VSC 633

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2023 04426

IN THE MATTER of the estate of ZVONKO CICVARIC, deceased

IN THE MATTER of an application under s 34 of the Administration and Probate Act 1958 and s 48 of the Trustee Act 1958

IVAN CICVARIC	Plaintiff
v
MARIA BLAZEVIC (in her capacity as executor and trustee of the estate of Zvonko Cicvaric)	Defendant

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JUDGE:	Goulden AsJ
WHERE HELD:	Melbourne
DATE OF JUDGMENT:	16 October 2024
CASE MAY BE CITED AS:	Cicvaric v Blazevic (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 633

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COSTS —Administration and Probate — Where executor/trustee removed from office— Administration and Probate Act 1958, s 34 — Trustee Act 1958, s 48 — Basis for costs order — Whether costs should be apportioned — Whole of circumstances considered to determine unfitness — No apportionment — Whether special circumstances to award of costs on indemnity basis — Knowledge of antecedent conduct — Delay in the administration of the estate — Unreasonable defence of proceeding by executor/trustee.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Baum	Sinisgalli Foster Legal
For the Defendant	Mr T Fleming	Stern Legal

Contents

Basis for the Costs Order

Should there be any apportionment of the costs?
Should costs be ordered on a standard or indemnity basis?

What legal costs ought be reimbursed?

Disposition

HER HONOUR:

I delivered my primary reasons for judgment in this proceeding on 31 July 2024 in favour of the plaintiff (‘Reasons’).[1] On 14 August 2024, I made orders removing the defendant as executor of the estate under s 34(1)(c) of the Administration and Probate Act 1958 and as trustee under s 48(1) of the Trustee Act 1958, together with consequential orders to give effect to the removal and for the reimbursement of estate monies by the defendant.
[1]Cicvaric v Blazevic [2024] VSC 450 (‘Reasons’).
I invited submissions from the parties on the following matters:
(a)having found that the defendant must pay the plaintiff’s costs of the proceeding personally,[2] the basis of that costs order; and
(b)having found that the defendant must repay to the estate the legal costs she charged to it in respect of her defence of this proceeding,[3] the amount of the reimbursement.
[2]Reasons, [129].
[3]Reasons, [122].

Basis for the Costs Order

Under s 24(1) of the Supreme Court Act 1986, the Court has a broad discretion as to the question of costs in a proceeding before it. This discretion must be exercised judicially, by reference to the factors raised by each case. As McMillan J said in Re Bogdanov,[4] the ‘central principle’ is ‘to make an order that is fair and just between the parties in the circumstances of each case’.[5] The usual order ‘is that a successful party in litigation is entitled to a costs order in its favour’,[6] usually ‘on a standard basis’,[7] although there is ‘a discretion to award non-standard costs where the…

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 Cicvaric v Blazevic (No 2)

Details

AGLC: Cicvaric v Blazevic (No 2) [2024] VSC 633
Case: [2024] VSC 633
Decision Date: 16 October 2024

CaseChat Overview and Summary

In the case of Cicvaric v Blazevic (No 2), the dispute centred around the removal of Blazevic as an executor and trustee of Cicvaric's estate. The matter was heard in the Supreme Court of Victoria. The primary legal issues the court had to address were whether costs should be apportioned between the parties, and if there were special circumstances justifying an award of costs on an indemnity basis. These issues arose from Blazevic's removal from office under the Administration and Probate Act 1958 and the Trustee Act 1958.

The court considered the whole of the circumstances to determine Blazevic's unfitness for office, finding that there were no grounds for apportionment of costs. The court emphasised that the basis for a costs order was the conduct of the parties and the outcome of the proceedings. It was noted that Blazevic had knowledge of antecedent conduct, had delayed the administration of the estate, and unreasonably defended the proceedings. These factors led the court to conclude that special circumstances existed for awarding costs on an indemnity basis.

Following this reasoning, the court determined that Blazevic should bear the costs of the proceedings on an indemnity basis. The court considered it appropriate to hold Blazevic accountable for the unreasonable conduct that had prolonged the litigation. This decision was made without speculating on Blazevic's motives or speculating on any potential future actions. The court's final orders required Blazevic to pay the costs of the proceedings on an indemnity basis.

Orders