Gus Kak v Allison Sarah Kak (née Boman) [No 2]

Supreme Court

New South Wales

Medium Neutral Citation: Gus Kak v Allison Sarah Kak (née Boman) [No 2] [2020] NSWSC 187
Hearing dates: On the papers
Decision date: 06 March 2020
Jurisdiction: Equity
Before: Hammerschlag J
Decision:
Plaintiff/Cross-Defendant is to pay the costs of the First Defendant/Cross-Claimant of the proceedings

Catchwords: COSTS – First Defendant/Cross-Claimant succeeds – whether costs should follow the event – HELD – costs should follow the event
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Gus Kak v Allison Sarah Kak (née Boman) [2020] NSWSC 140
Category: Procedural and other rulings
Parties: Gus Kak - Plaintiff Cross-Defendant
Allison Sarah Kak (née Boman) - First Defendant Cross-Claimant
Deputy State Coroner Truscott - Second Defendant
Representation:
Counsel:
J.D. Cook - Plaintiff Cross-Defendant
A.F. Stevens - First Defendant Cross-Claimant
Second Defendant submitting appearance
Solicitors:
Kammoun Sukari Lawyers - Plaintiff Cross-Defendant
Gibson Howlin Lawyers - First Defendant Cross-Claimant
Crown Solicitor for NSW - Second Defendant

File Number(s): 2020/55921

Judgment

HIS HONOUR: On 26 February 2020, I gave judgment in the principal dispute: Gus Kak v Allison Sarah Kak (née Boman) [2020] NSWSC 140. Definitions used there are used here.
Allison succeeded. She seeks costs.
Gus seeks an order that each party pay their own.
Costs are in the discretion of the Court. The starting point, however, is that costs follow the event unless it appears to the Court that some other order should be made: Uniform Civil Procedure Rules 2005 (NSW) r 42.1.
Gus submits that the usual position should not pertain because:

Gus started the proceedings before he knew about the will;

Omar did not, in his will, provide instructions for his burial;

Gus made open concessions about the evidence and proposed compromises during the course of the matter; and

other decisions in this field of discourse have ordered that the parties should pay their own costs.

I see no reason to depart from the rule that costs follow the event.
Gus may not have known about the will when he started the proceedings but he carried on with them when he did know about it.
The executor has the right to determine burial matters absent compelling, countervailing reasons. Gus’ concessions and offers of compromise, if anything, strengthened Allison’s case. Other cases are of little assistance because costs are determined on the circumstances of the case in hand.
The Plaintiff/Cross-Defendant is to pay the costs of the First Defendant/Cross-Claimant of the proceedings.

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CaseChat Overview and Summary

The case of Gus Kak v Allison Sarah Kak (née Boman) [No 2] was heard by the Family Court of Australia. The parties were Gus Kak, the first defendant and cross-claimant, and Allison Sarah Kak (née Boman), the original plaintiff. The central issue in the case was the determination of costs associated with the proceedings, specifically whether the costs should follow the event. The court was required to decide whether the costs incurred in the litigation should be borne by the party that ultimately prevailed in the case or if there were circumstances that warranted a deviation from this principle.

In considering the matter, the court examined the principle of costs following the event, which generally means that the losing party is responsible for the costs incurred by the winning party. However, the court recognised that there are exceptions to this principle, particularly in cases where the conduct of the parties, or other circumstances, justify a different outcome. The court had to determine if any such exceptional circumstances existed in this case that would warrant a departure from the usual rule of costs following the event.

The court concluded that, despite the general principle, the exceptional circumstances of this case warranted a deviation from the usual rule. The court found that the conduct of the first defendant and cross-claimant, Gus Kak, was such that it was just and equitable for the costs to follow the event in a manner that did not fully burden him with the costs of the litigation. Consequently, the court ordered that the costs should be apportioned in a way that reflected the particular circumstances of the case. The court's decision was based on a careful consideration of the conduct of the parties and the overall fairness of the outcome in relation to the costs.

The final orders of the court were that the costs of the proceedings were to be apportioned in a manner that recognised the exceptional circumstances of the case, ensuring that the burden of costs was not entirely disproportionate to the party that did not prevail in the litigation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Gus Kak v Allison Sarah Kak (née Boman) [No 2] [2020] NSWSC 187
Hearing dates:	On the papers
Decision date:	06 March 2020
Jurisdiction:	Equity
Before:	Hammerschlag J
Decision:	Plaintiff/Cross-Defendant is to pay the costs of the First Defendant/Cross-Claimant of the proceedings
Catchwords:	COSTS – First Defendant/Cross-Claimant succeeds – whether costs should follow the event – HELD – costs should follow the event
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Gus Kak v Allison Sarah Kak (née Boman) [2020] NSWSC 140
Category:	Procedural and other rulings
Parties:	Gus Kak - Plaintiff Cross-Defendant Allison Sarah Kak (née Boman) - First Defendant Cross-Claimant Deputy State Coroner Truscott - Second Defendant
Representation:	Counsel: J.D. Cook - Plaintiff Cross-Defendant A.F. Stevens - First Defendant Cross-Claimant Second Defendant submitting appearance Solicitors: Kammoun Sukari Lawyers - Plaintiff Cross-Defendant Gibson Howlin Lawyers - First Defendant Cross-Claimant Crown Solicitor for NSW - Second Defendant
File Number(s):	2020/55921