Jones v Krawczyk (No. 2) - [2011] NSWSC 352

Supreme Court

New South Wales

Medium Neutral Citation: Jones v Krawczyk (No. 2) [2011] NSWSC 352
Hearing dates: On the papers.
Decision date: 02 May 2011
Before: White J
Decision:
Order that the plaintiff pay the defendant's costs of the proceedings not including:
(a) the costs of the affidavits of the defendant sworn on 2 September 2010 and 18 October 2010, or the costs of the affidavits of Krystyna Krawczyk sworn 18 October 2010 or Betty Speck sworn 15 October 2010; and
(b) the costs of the submissions as to what costs orders should be made.

Catchwords: PROCEDURE - costs - general rule costs follow the event - whether costs should include costs of affidavits read that clearly not relevant - costs incurred in obtaining affidavits not properly and reasonably incurred - order plaintiff to pay defendant's costs of proceedings not including the costs of the affidavits in question and the costs of the submissions as to what costs orders should be made
Cases Cited: Ramsay v Trustees Executors and Agency Co Ltd [1948] HCA 44; (1948) 77 CLR 321
Jones v Krawczyk [2011] NSWSC 139
Saunders v Vautier (1841) 4 Beav 115; 49 ER 282
Category: Costs
Parties: Zofia Maria Jones (Plaintiff)
John Krawczyk (Defendant)
Representation: Counsel:
C Harris SC (Plaintiff)
L Judge (Defendant)
Solicitors:
Craddock Murray Neumann - Plaintiff
Williams Roncolato Lawyers - Defendant

File Number(s): 2010/137822

Judgment

HIS HONOUR : The plaintiff accepts that she should pay the defendant's costs of these proceedings as she was unsuccessful. She submits that an order should be made that those costs not include the costs of four affidavits, namely, two affidavits made by the defendant sworn 2 September 2010 and 18 October 2010, an affidavit of Krystyna Krawczyk sworn 18 October 2010 and an affidavit of Betty Speck sworn 15 October 2010. Those affidavits set out in considerable detail what was said to be the plaintiff's relationship with the deceased, her requests for financial assistance, her relationship with her husband and his financial management, statements made by the deceased as to the reasons for changes to her will, and discussions between the plaintiff and the defendant concerning the will.

The plaintiff served two affidavits in response to the defendant's first affidavit. The defendant then served three further affidavits by way of corroboration of the assertions in the defendant's first affidavit.

Even if the material in the defendant's affidavits were relevant, much of the material would have been inadmissible had objection been taken.

The position taken by counsel for the plaintiff to the defendant's affidavits was that the plaintiff did not concede that the material in the affidavits was relevant, but, to avoid taking up the time which would be involved in dealing with objections to affidavits, the plaintiff did not make objection to them. This was a sensible approach.

Whilst the affidavits were read, they were not thereafter referred to. In response to my question as to what was the relevance of the affidavits, counsel for the defendant could…

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 Jones v Krawczyk (No. 2)

Details

AGLC: Jones v Krawczyk (No. 2) [2011] NSWSC 352
Case: [2011] NSWSC 352
Decision Date: 02 May 2011

CaseChat Overview and Summary

The parties involved in this case were Jones and Krawczyk. The nature of the dispute was primarily about the costs incurred during the legal proceedings, particularly focusing on whether the plaintiff should bear the costs of affidavits that were read but deemed not relevant. This case was heard in the court of first instance, the Federal Circuit Court of Australia. The legal issues the court had to resolve included the general principle that costs follow the event and whether it was appropriate to include the costs of affidavits in the costs awarded, specifically those that were read but not considered relevant to the proceedings.

The court addressed these issues by applying the principle that costs should be awarded in a manner that is just and equitable. It was determined that the costs of the affidavits in question were not properly and reasonably incurred, as they were read but not relevant to the proceedings. Therefore, the court found that it would not be fair to include these costs in the overall costs awarded to the plaintiff. The court further held that the costs incurred in obtaining the affidavits were not properly and reasonably incurred either, as they were not relevant to the proceedings. Consequently, the court ordered that the plaintiff should pay the defendant's costs of the proceedings, excluding the costs of the affidavits and the costs associated with the submissions regarding what the costs orders should be.

The court's reasoning was based on the need to ensure that costs are awarded fairly and that unnecessary expenses are not imposed on either party. By excluding the costs of the affidavits and the costs related to the submissions about the costs orders, the court aimed to avoid any unjust enrichment of the plaintiff. This decision reinforces the principle that costs should reflect the actual expenses incurred during the proceedings that are relevant and necessary. The final orders made by the court were that the plaintiff should pay the defendant's costs of the proceedings, excluding the costs of the affidavits and the costs of the submissions regarding what the costs orders should be.

Orders