Everts v Liepins (No 2)

[2022] NSWSC 1598

Supreme Court

New South Wales

Medium Neutral Citation:

Everts v Liepins (No 2) [2022] NSWSC 1598

Hearing dates:

17 November 2022

Date of orders:

17 November 2022

Decision date:

17 November 2022

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court orders:

(1) As the applicant has succeeded to the extent possible, the respondent to pay, personally, the applicant’s costs of the notice of motion filed on 12 April 2022. For the avoidance of any doubt, to the extent that the applicant’s costs, or any part thereof, are paid by the respondent out of the estate of the deceased, the respondent is ordered to reimburse the estate for those costs.

(2) There be no order as to the respondent’s costs relating to resisting the applicant’s notice of motion, of complying with the orders (such as have been complied with) entered on 15 July 2022 and updated on 21 July 2022 or otherwise in complying with these orders.

(3) These orders, as entered, together with a copy of these reasons for the orders made, should be served on the respondent within three working days of the orders being entered and the reasons for judgment being received by the applicant’s solicitors.

Catchwords:

COSTS — SUCCESSION – Costs of notice of motion sought against executor who has not distributed the estate of the deceased – Failure by executor to comply fully with orders of the Court – Failure to appear at hearing of the notice of motion – No general issue of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 98(1)

Cases Cited:

Everts v Liepins [2022] NSWSC 1021

Category:

Costs

Parties:

Bernt Everts (Applicant)
Juris Liepins (Respondent)

Representation:

Counsel:
T Maltz (Applicant)

Solicitors:
HWL Ebsworth Lawyers (Applicant)

File Number(s):

2013/143016

Publication restriction:

Nil

Judgment– EX TEMPORE (Revised)

1. HIS HONOUR: In this matter, which follows the hearing, and the delivery of reasons for judgment, bearing the medium neutral citation, Everts v Liepins [2022] NSWSC 1021, I am now dealing with the issue of costs of the notice of motion the subject of those reasons. Once again, there has been no appearance by, or on behalf of, the respondent to the notice of motion.

2. It is not necessary to repeat the orders that I made following the reasons for judgment. However, it is necessary to mention that on 20 September 2022, at a directions hearing, I noted that the only document that had been served by the respondent, purportedly in accordance with the orders made by the Court on 14 July 2022, and entered on 15 July 2022, was an affidavit sworn by him on 9 September 2022, which affidavit did not appear to include all of the matters identified in paragraphs 1 and 2 of the orders made, although some information was provided. I also noted that no folder of documents referred to in order 4 of my orders, had been provided. (The orders were subsequently updated by the Registry on 21 July 2022 to include the Penal Notice).

3. I was informed today that on 14 September 2022, the respondent had paid to the applicant €175,433.44.

4. There is evidence, read on the costs application, given by a solicitor at the firm of the solicitors on the record for the applicant, that on 14 November 2022, an email had been sent to the respondent notifying him that the matter was listed today and that orders for costs would be sought being, effectively, an order that the applicant’s legal costs associated with the notice of motion should be paid from the estate and an order that the respondent should personally reimburse any legal costs that are paid to the applicant from the estate. Notice was also given to the respondent on 15 November 2022 that an order would be sought that the respondent not be allowed any costs out of the estate relating to his opposition to the applicant’s notice of motion filed 12 April 2022 and/or the costs of complying with the orders.

5. No response has been received from the respondent to the email correspondence and as stated, he has not appeared. I am satisfied, however, that the respondent ought to have been aware of the need to appear today, if he wished to dispute the orders for costs that are sought and that he has chosen not to do so.

6. Bearing in mind that the deceased died almost a decade ago, and also the history of the proceedings, both before, and after, publishing the reasons for judgment, I am satisfied that I should deal with the application for the costs of the notice of motion even though there has been no appearance.

7. Furthermore, the respondent’s lack of involvement in the proceedings has now led the applicant to come to the view that all that can be done to ensure that the deceased’s estate is, and has been, administered, has been done. His counsel stated that the applicant had “decided that there is no point throwing more money at this, so we simply seek to finalise the proceedings at this point”.

8. This, of course, should not be taken to mean that the respondent’s obligations to complete the administration of the estate have ceased.

9. There is no reason of which I am aware why the applicant’s costs should not be paid by the respondent personally. There appears to have been an almost complete disregard by him of his obligations in the administration of the deceased’s estate and of the Court’s orders. He has failed to appear, other than on one occasion, at any of the Court hearings.

10. Pursuant to s 98(1) of the Civil Procedure Act 2005 (NSW), the Court has a broad discretion to award or withhold costs. That discretion, whilst untrammelled, must be exercised judicially, including by reference to the ordinary principle that the successful party ought to receive its costs from the unsuccessful party.

11. As the applicant has succeeded to the extent possible, I order the respondent to pay, personally, the applicant’s costs of the notice of motion filed on 12 April 2022. For the avoidance of any doubt, to the extent that the applicant’s costs, or any part thereof, are paid by the respondent out of the estate of the deceased, he is ordered to reimburse the estate for those costs.

12. I make no order as to the respondent’s costs relating to resisting the applicant’s notice of motion, of complying with the orders (such as have been complied with) entered on 15 July 2022 and updated on 21 July 2022 or otherwise in complying with these orders.

13. I also order that these orders, as entered, together with a copy of these reasons for the orders made, should be served on the respondent within three working days of the orders being entered and the reasons for judgment being received by the applicant’s solicitors.

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Decision last updated: 23 November 2022