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Daicos v Daicos (No 2)

Daicos v Daicos (No 2)

Case [2018] VSC 693 14 November 2018

Costs

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2017 01057

IN THE MATTER of the trusts established pursuant to clauses 3 and 4 of the will of Alexandra Daicos, deceased

-and-

IN THE MATTER of rr 54.02(a)(i), (a)(iii), (b)(iii), (c)(ii) of the Supreme Court (General Civil Procedure) Rules 2015

B E T W E E N:

SHAMIMA DAICOS	Plaintiff
v
PHILLIP DAICOS (who is sued as the trustee of the will and estate of Alexandra Daicos, deceased)	First defendant
-and-
AHMED DAICOS	Second defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	14 November 2018
CASE MAY BE CITED AS:	Daicos v Daicos & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 693

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COSTS — Where plaintiff sought orders and declarations as to construction of will — Proceeding not adjudicated on the merits — Where parties sought costs orders against the other — Whether conduct of the parties was reasonable in pursuing or defending proceeding — No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D J Sanders	Hicks Oakley Chessell Williams Pty Ltd
For the First Defendant	Ms C Sparke QC	Whiting Lawyers
For the Second Defendant	Mr A P Dickenson	Robinson Gill Lawyers

HER HONOUR:

Introduction

Alexandra Daicos (‘the deceased’) died on 31 July 2010, leaving a will dated 1 April 2010 (‘the will’).

The deceased was survived by her four children, Philip Daicos (‘the first defendant’), Ahmed Daicos, formerly known as George Daicos (‘the second defendant’), Helen Komora and Jeanette Daicos.

Shamima Daicos (‘the plaintiff’) married the second defendant in July 1993. They have two daughters, Khadija Daicos and Raqayah Daicos.

Probate of the will was granted to the first defendant on 4 October 2010. The estate of the deceased includes a property at 66 Freeman Street, in North Fitzroy (‘the Fitzroy house’) and the will contains the following clauses concerning it:

3. I GIVE DEVISE AND BEQUEATH my property situate and known as 66 Freeman Street, North Fitzroy or any other property purchased by me in substitution thereof to my Trustee UPON TRUST:
a. To permit my son GEORGE DAICOS to live in the property
(“the house”) during his lifetime. My son must pay building insurance (as assessed by my Trustees) water and sewerage usage charges payable in respect of the house and shall keep the house in a reasonable state of repair. If my Trustees decide that because of illness, infirmity or other good reason it is in the best interest of my son to do so,
my Trustees may sell the house and may purchase another residence (“the new residence”) out of the proceeds of the sale of the house and shall hold the new residence upon the same trusts as those upon which the house was held including the power of sale and purchase.
Any surplus arising for the sale of the house and the purchase of 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 Daicos v Daicos (No 2)

Details

AGLC: Daicos v Daicos (No 2) [2018] VSC 693
Case: [2018] VSC 693
Decision Date: 14 November 2018

CaseChat Overview and Summary

In Daicos v Daicos (No 2), the parties were in dispute over the construction of a will. The case was heard in the Supreme Court of South Australia. The plaintiff, Daicos, sought orders and declarations concerning the will's interpretation, while the defendant, also Daicos, opposed these claims. Both parties subsequently sought costs orders against each other. The central legal issue before the court was whether the conduct of the parties in pursuing or defending the proceeding was reasonable, given that the proceeding was not adjudicated on its merits.

The court considered the conduct of both parties in the context of the proceeding's nature and the absence of a substantive determination on the merits. It found that the proceeding did not involve any significant point of principle that would warrant a detailed examination of the parties' conduct. Given that the case did not reach a definitive resolution, the court concluded that neither party acted unreasonably in pursuing or defending the proceeding. Consequently, the court denied both parties' applications for costs, emphasising the need for a balanced approach in cases where proceedings are not fully adjudicated on the merits.

The court's decision reflects a pragmatic approach to costs in cases where substantive outcomes are not achieved. It underscores the importance of considering the overall conduct of the parties in the context of the proceeding's nature and the absence of a definitive resolution. The court's ruling highlights the principle that in such cases, neither party's actions should be deemed unreasonable, thereby avoiding the imposition of costs against either party.

The final orders of the court were that both parties' applications for costs were dismissed, reflecting the court's view that the proceeding's nature and lack of substantive outcome warranted no costs order against either party.

Orders