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

[2020] NSWSC 187

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

1. 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.

2. Allison succeeded. She seeks costs.

3. Gus seeks an order that each party pay their own.

4. 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.

5. 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.

6. I see no reason to depart from the rule that costs follow the event.

7. 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.

8. 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.

9. The Plaintiff/Cross-Defendant is to pay the costs of the First Defendant/Cross-Claimant of the proceedings.

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Decision last updated: 06 March 2020