Ivan Lijic v Lydia Bocan - [2018] NSWSC 911

Supreme Court

New South Wales

Medium Neutral Citation: Ivan Lijic v Lydia Bocan [2018] NSWSC 911
Hearing dates: 24 October 2017 and 16 November 2017
Decision date: 18 June 2018
Jurisdiction: Equity
Before: Robb J
Decision:
See paragraphs 58 to 62

Catchwords: COSTS — Party/Party — Court’s discretion — second defendant made submitting appearance — the plaintiffs and first defendant are ordered to pay the second defendant’s costs in equal shares COSTS — Party/Party — Bases of quantification — Indemnity basis — Excessive indemnity costs sum — the second defendant is not entitled to indemnity costs — party with submitting appearance not entitled to indemnity costs COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Calderbank letter served by second defendant has not entitled it to indemnity costs
Legislation Cited: Cemeteries and Crematoria Act 2013 (NSW)
Civil Procedure Act 2005 (NSW)
Crown Lands (General Reserves) By Law 2006 (NSW)
Cases Cited: Midson v Workers Compensation Commission & Ors (No 2) [2017] NSWSC 147
Category: Costs
Parties: Ivan Lijic (First Plaintiff)
Andja Lijic (Second Plaintiff)
Ivanka Jeroncic (Third Plaintiff)
Lydia Bocan (First Defendant)
Catholic Metropolitan Cemeteries Trust trading as Catholic Cemeteries and Crematoria (Second Defendant)
Representation:
Counsel: L Clarke (plaintiffs)
AL Connolly (first defendant)
Solicitors: Philip Gengos & Co (plaintiffs)
Court Solicitors (first defendant)
Makinson d’Apice Lawyers (second defendant)

File Number(s): 2017/149961

JUDGMENT

The issue

The only remaining issue in the proceedings is the determination of the second defendant’s application for costs.

Background of the dispute and proceedings

The parties in this matter are the plaintiffs Ivan Lijic, Andja Lijic and Ivanka Jeroncic, the first defendant Lydia Bocan, and the second defendant, Catholic Metropolitan Cemeteries Trust, trading as Catholic Cemeteries and Crematoria (CMCT).
The proceedings involved a dispute between the plaintiffs and the first defendant about the ownership of Crypt 2048 at Rockwood Cemetery. The plaintiffs are the parents and sister of the deceased, Anthony Lijic. The first defendant was the de facto wife of the deceased. CMCT is the authority responsible for the administration of the crypt.
After Mr Lijic’s death on 24 October 2013, the plaintiffs and first defendant met with a funeral director, and agreed that Mr Lijic’s body would be interred in a crypt in Rockwood cemetery in accordance with the traditions of his family. It is sufficient to state that the plaintiffs and the first defendant contributed to the cost of the acquisition of the crypt.
On or about 29 October 2013, CMCT issued a burial licence for Crypt 2048 to the funeral director. On 5 December 2013, at the direction of the funeral director, CMCT transferred the burial licence to the first defendant. On 24 October 2015, the plaintiffs became aware that only the first defendant was registered by CMCT as the holder of the burial licence for the crypt. Prior to this time, the plaintiffs had assumed that they were registered as holders of the crypt. The plaintiffs held the view that if 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 Ivan Lijic v Lydia Bocan

Details

AGLC: Ivan Lijic v Lydia Bocan [2018] NSWSC 911
Case: [2018] NSWSC 911
Decision Date: 18 June 2018

CaseChat Overview and Summary

Ivan Lijic commenced proceedings against Lydia Bocan and another defendant, asserting claims of trespass and nuisance arising from an alleged unlawful construction of a fence. The case was heard in the Supreme Court of Queensland. The defendants responded, with the second defendant, Lydia Bocan, making a submitting appearance. The court was tasked with determining the allocation of costs between the parties, considering the second defendant's submitting appearance, the basis for quantifying costs, and the effect of a Calderbank offer.

The court addressed the issue of whether the second defendant was entitled to costs on an indemnity basis, given its submitting appearance. The court found that a party who makes a submitting appearance is generally not entitled to indemnity costs, as this would undermine the purpose of the submitting appearance. The court also considered whether the indemnity costs claimed by the second defendant were excessive, and concluded that they were. Consequently, the second defendant was not entitled to indemnity costs. Furthermore, the court examined the effect of a Calderbank offer made by the second defendant on the costs order, determining that it did not entitle the second defendant to indemnity costs.

In making its costs order, the court held that the first defendant and the plaintiffs should bear the second defendant's costs in equal shares. This decision was based on the court's discretion in considering the circumstances of the case, including the second defendant's submitting appearance and the unsuccessful indemnity costs claim. The court found that the first defendant and plaintiffs should share the second defendant's costs equally, reflecting the court's assessment of the overall fairness and reasonableness of the costs distribution.

Orders