Drivas v Jakopovic (No. 2) - [2019] NSWSC 376

Supreme Court

New South Wales

Medium Neutral Citation: Drivas v Jakopovic (No. 2) [2019] NSWSC 376
Hearing dates: 4 April 2019
Date of orders: 04 April 2019
Decision date: 04 April 2019
Jurisdiction: Equity
Before: Parker J
Decision:
No order as to the costs of the proceedings.

Catchwords: COSTS – Party/Party — Exceptions to general rule that costs follow the event – contested probate litigation – whether the deceased the cause of the litigation – whether prosecution of proceedings reasonable – no order as to costs.
Legislation Cited: Nil.
Cases Cited: Banks v Goodfellow (1870) LR 5 QB 549
Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65
Drivas v Jakopovic [2018] NSWSC 1803
Middlebrook v Middlebrook (1962) 36 ALJR 216
Re Estate of Hodges (1988) 14 NSWLR 698
Shorten v Shorten (No 2) [2003] NSWCA 60
Category: Costs
Parties: Anita Drivas (Plaintiff)
Boris Jakopovic (Defendant)
Representation:
Counsel:
J Brown (Plaintiff)
R Tregenza (Defendant)
Solicitors:
Sydney Law Practice Pty Ltd (Plaintiff)
Webb Law (Defendant)

File Number(s): 2016/108097
Publication restriction: Nil

Judgment – EX TEMPORE

Revised and reissued 8 April 2019

I am now required to deal with the question of costs, following the delivery of my judgment in this matter in November 2018: Drivas v Jakopovic [2018] NSWSC 1803. The reasons I will give concerning costs assume familiarity with that judgment.
Counsel for the successful defendant, Boris, sought orders that Boris' costs be paid on an indemnity basis out of the estate and that the unsuccessful plaintiff, Anita, indemnify Boris against those costs on a party‑party basis for the period after the service of Mr Taylor's affidavit on 24 March 2017. Counsel for Anita submitted that her costs should be paid out of the estate; or alternatively, there should be no order as to costs.
There is no need in this case to make an order for payment of Boris' costs out of the estate. Boris is the sole beneficiary and thus to the extent that costs fall on him, they will in effect come out of the estate in any event. The real question is whether Anita should be required to pay Boris' costs after the service of Mr Taylor's affidavit in March 2017.
Among the cases to which I was referred was Shorten v Shorten (No 2) [2003] NSWCA 60. That case confirms the existence in contested probate litigation of exceptions to the general rule that costs follow the event. The two exceptions were stated in Shorten v Shorten (by citation from the earlier judgment of Powell J in Re Estate of Hodges (1988) 14 NSWLR 698 at 709) as being:

1. Where the testator has, or those interested in residue have, been the cause of the litigation, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate;
2. If the circumstances led reasonably to an investigation in regard to the document propounded, the costs may be left to be borne by those who respectively incurred them.

Mason…

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 Drivas v Jakopovic (No. 2)

Details

AGLC: Drivas v Jakopovic (No. 2) [2019] NSWSC 376
Case: [2019] NSWSC 376
Decision Date: 04 April 2019

CaseChat Overview and Summary

The case of Drivas v Jakopovic (No. 2) involved the dispute between the plaintiff, Drivas, and the defendant, Jakopovic, concerning the estate of a deceased individual. The proceedings were related to the probate of the deceased's will and the subsequent distribution of the estate. The case was heard in the Supreme Court of New South Wales. The primary legal issue the court had to address was whether the deceased was the cause of the litigation, and if so, whether it was reasonable for the plaintiff to have pursued the proceedings. This issue was pivotal in determining whether the general rule that costs follow the event could be departed from.

The court meticulously examined the circumstances surrounding the litigation. It considered whether the deceased's actions or inactions directly led to the necessity of the legal proceedings. The court also assessed the reasonableness of the plaintiff's decision to pursue the litigation, taking into account the complexity of the estate and the nature of the disputes. The court found that the deceased was indeed the cause of the litigation but also concluded that the plaintiff's prosecution of the proceedings was reasonable given the circumstances. This conclusion was based on the significant challenges presented by the estate and the necessity to resolve the disputes through the court.

Given the findings, the court determined that it would not make an order as to costs, deviating from the general rule. The court's decision highlighted the exceptional nature of the case, where the deceased's actions necessitated the litigation, and the plaintiff's actions were deemed reasonable under the circumstances. This decision underscores the importance of context in applying the general rule of costs following the event. The court's reasoning was based on the specific facts and the reasonableness of the plaintiff's actions in the context of the estate's complexities.

Orders