Karastamatis v Tzanavaras (No 2) - [2014] SASC 21

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
KARASTAMATIS v TZANAVARAS (No 2)
[2014] SASC 21
Reasons for Decision of The Honourable Justice Nicholson
27 February 2014
PROCEDURE - COSTS
Depriving a successful party of part of their costs - ordering a successful party to pay part of their opponent's costs.
Held: The defendant is to pay 85 per cent of the plaintiff's costs of the proceedings on a party and party basis.
Supreme Court Act 1935 s40; Supreme Court Rules 2006, Rule 263, Rule 264, referred to.
Copping v ANZ McCaughan (1995) 63 SASR 523; Gwinnett v Day (No 2) [2012] SASC 61; House v R (1936) 55 CLR 499; Cretazzo v Lombardi (1975) 13 SASR 4; Calderbank v Calderbank [1975] 3 All ER 333; Morris v McEwen (2005) 92 SASR 281, considered.

KARASTAMATIS v TZANAVARAS (No 2)
[2014] SASC 21
Civil

NICHOLSON J. The plaintiff and the defendant are brother and sister. At the trial of this matter various disputes in their personal capacities and arising out of the defendant’s administration of their deceased father’s estate were ventilated. In my reasons for judgment,[1] I allowed both the plaintiff’s claim in part and the defendant’s cross-claim in part.
[1] Karastamatis v Tzanavaras [2013] SASC 163.
The plaintiff seeks an order that the defendant pay her costs of the proceedings. However, the defendant seeks an order that the plaintiff pay his costs, in whole or in part, or in the alternative, that each party bears their own costs or in the further alternative, that the defendant be obliged to pay only a portion of the plaintiff’s costs.
Supreme Court Rule 6R 263 provides (subject to various referred to exceptions) that as a general rule costs follow the event. Rule 6R 264 provides that the court may, in the exercise of its discretion as to costs, award costs on any basis the court considers appropriate. However, the general approach is that costs are to be awarded as between party and party and in accordance with the relevant scale provided under the Rules. It is accepted that, when the Rules are read in conjunction with s40 of the Supreme Court Act 1935,[2] there has been conferred on courts and judges an unfettered discretion as to costs.[3] Of course, the discretion must be exercised judicially and by having regard to relevant considerations and not relying on irrelevant considerations.[4]
[2] Section 40(1) provides – subject to the express provisions of this Act and to the rules of court and to the express provisions in any other Act whenever passed, the costs of and incidental to all proceedings in the court, … shall be in the discretion of the court or judge and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid.
[3] See generally Copping v ANZ McCaughan (1995) 63 SASR 523 at 527; Gwinnett v Day (No 2) [2012] SASC 61.
[4] House v…

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.

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Details

Case: [2014] SASC 21
Decision Date

CaseChat Overview and Summary

The matter of Karastamatis v Tzanavaras (No 2) [2014] SASC 21 involved a dispute between siblings, the plaintiff and the defendant, over the administration of their deceased father's estate. The plaintiff, represented by Karastamatis, sought various orders and clarifications regarding the estate, including an account on a wilful default basis and the distribution of certain assets. The defendant, represented by Tzanavaras, cross-claimed for reimbursement of expenses and denied certain allegations made by the plaintiff. The court allowed the plaintiff's claim in part and the defendant's cross-claim in part.

The primary legal issues before the court were whether the defendant, as executor of the estate, had adequately accounted for the estate's assets and whether the plaintiff was entitled to certain personal effects and property. Additionally, the court had to determine the appropriate allocation of costs between the parties, considering the outcomes of the claims and cross-claims.

In its reasoning, the court noted that while the plaintiff was successful on several significant issues, the defendant had failed to keep adequate records, which impeded the plaintiff's ability to pursue certain claims effectively. The court found that the plaintiff's failure to succeed on some issues was not due to any fault on her part but rather to the defendant's poor record-keeping. Consequently, the court exercised its discretion to deprive the plaintiff of part of her costs. The court held that the defendant should pay 85% of the plaintiff's costs of the proceedings on a party and party basis, reflecting the disproportionate success of the plaintiff in the litigation.

The final orders of the court mandated that the defendant pay 85% of the plaintiff's costs of the proceedings on a party and party basis. This decision was based on the court's assessment of the overall success of the plaintiff and the significant failures of the defendant in record-keeping and estate administration.

Orders