Kalenik v Apostolidis (No 3)

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7588 of 2000

ZORICA KALENIK	Plaintiff
v
JOHN IOANNIS APOSTOLIDIS & ORS	Defendants

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2009
DATE OF JUDGMENT:	23 October 2009
CASE MAY BE CITED AS:	Kalenik v Apostolidis (No 3)
MEDIUM NEUTRAL CITATION:	[2009] VSC 475

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COSTS – Application for an adjustment order under Part IX of the Property Law Act 1958 (Vic) ‑ Plaintiff successful in obtaining an adjustment order ‑ Misconduct by both parties in relation to the proceeding ‑ Plaintiff’s evidence concerning significant factual issues rejected ‑ Whether plaintiff’s costs should be reduced to reflect misconduct and lack of success on significant issues ‑ Plaintiff’s costs of and incidental to the trial reduced by 25 per cent.

COSTS – Calderbank offer by defendant – Whether unreasonably rejected by successful plaintiff – Relevance of reduction in plaintiff’s costs entitlement – Held: plaintiff’s rejection of Calderbank offer not unreasonable in all the circumstances. 

COSTS – Offer of compromise – Without prejudice – Whether without prejudice privilege abrogated by rules of Court once all questions of liability and relief determined – Supreme Court (General Civil Procedure) Rules 2005, Rule 26.05(2) – Held: without prejudice privilege not abrogated.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Gunst QC with Mr R Edmunds	Leo Dimos & Associates
For the Defendants	Mr S Wilson QC with Dr D Kovacs	David Tonkin & Associates

TABLE OF CONTENTS

Introduction ........................................................................................................................................ 2

Relevant legal principles.................................................................................................................. 3

What costs order should be made for the interlocutory stages of the proceeding?.............. 5

What costs order should be made for the costs of and incidental to the trial?...................... 6

Did the plaintiff unreasonably refuse the defendant’s Calderbank offer?............................ 7

Has the plaintiff achieved substantial success?......................................................................... 10

What orders should be made for the costs incurred after the principal reasons?............... 14

Conclusion and orders.................................................................................................................... 15

HIS HONOUR:

Introduction

1. On 29 May 2009, the Court published reasons for judgment (‘principal reasons’).[1]  In the principal reasons, it was determined that the plaintiff was entitled to an adjustment order under Part IX of the Property Law Act 1958 (Vic) (‘adjustment order’). The adjustment order was based upon a valuation of the assets of the parties at the date they separated in March 2000 (‘separation date’). The adjustment order required the first defendant to pay the sum of $500,000 to the plaintiff. For convenience, I will refer to the first defendant as ‘the defendant’.

   [1]Kalenik v Apostolidis [2009] VSC 208.

1. Subsequently, the Court heard argument as to whether the adjustment order should carry interest and, if so, in what amount.  On 17 September 2009, the Court published reasons for judgment (‘interest reasons’).[2]  In the interest reasons, it was determined that the plaintiff was entitled to interest on the amount of the adjustment order in the sum of $509,109.  Judgment was then entered for the plaintiff in the sum of $1,009,109. 

   [2]Kalenik v…