Kizmann v De Maine (No 3)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Kizmann v De Maine (No 3)

Citation: 

[2024] ACTSC 171

Hearing Date: 

23 May 2024

Decision Date: 

23 May 2024

Before:

McCallum CJ

Decision: 

(1)    The amount of interest referred to in Order 1 made on 9 May 2024 be determined in the agreed amount of $142,658.63.

(2)    The costs the subject of Order 3 made on 9 May 2024 be assessed on a party-party basis up to and including 16 June 2023, and on a solicitor-client basis from 16 June 2023.

Catchwords: 

CIVIL LAW – PRACTICE AND PROCEDURE – Costs – application for indemnity costs – where offer of compromise by plaintiff not accepted – whether it was unreasonable for the first defendant to have subjected the plaintiff to the expenditure of the hearing – timing of offer of compromise

Legislation Cited:

Court Procedures Rules 2006 (ACT), rr 1002, 1010

Court Procedures Act 2004 (ACT), s 5A

Cases Cited: 

Lehrmann v Network Ten Pty Limited (Costs) [2024] FCA 486

Kizmann v De Maine (No 2) [2024] ACTSC 139

Parties: 

Ivan Gerard Kizmann ( Plaintiff)

Gregory John De Maine ( First Defendant)

Shostko Systems Pty Ltd (deregistered) (Second Defendant)

Representation: 

Counsel

P Hohnen ( Plaintiff)

N Gabbedy ( First Defendant)

Solicitors

Legal on London ( Plaintiff)

Gabbedy Milson Lee ( First Defendant)

File Number:

SC 586 of 2019

McCALLUM CJ:       

EX TEMPORE REASONS (REVISED) 

1․In these proceedings, Mr Ivan Kizmann sought to enforce loans made through negotiation with a longstanding friend, Mr Gregory De Maine.  The single issue in the proceedings by the time it was heard by me was whether the loans were made to Mr De Maine personally or instead to his now defunct company, Shostko Systems Pty Ltd.

2․In a judgment published on 9 May 2024, I found in favour of Mr Kizmann against Mr De Maine personally; see Kizmann v De Maine (No 2) [2024] ACTSC 139. I ordered that the first defendant pay the plaintiff's costs. However, upon being informed that there was an application by the plaintiff for a different order as to costs, I stood the matter over to today for determination of that application.

3․There was a further question that remained to be determined following publication of the primary judgment as to the interest on the judgment debt.  Happily, the parties are agreed on the relevant sum of interest.  I am grateful for their cooperation on that issue.

4․As to costs, the plaintiff seeks indemnity costs on the basis of the first defendant’s allegedly unreasonable conduct in defending the proceedings, relying on the recent decision of Lee J in Lehrmann v Network Ten Pty Limited (Costs) [2024] FCA 486, published on 10 May 2024. In that decision, Lee J upheld a claim for indemnity costs on the basis of a finding that, in bringing proceedings for defamation on an imputation that he had sexually assaulted Ms Brittany Higgins, Mr Lehrmann had in effect prosecuted what he knew to be a lie…