Koprivnjak v Koprivnjak - [2021] NSWSC 183

Supreme Court

New South Wales

Medium Neutral Citation: Koprivnjak v Koprivnjak [2021] NSWSC 183
Hearing dates: 10 December 2020
Date of orders: 5 March 2021
Decision date: 05 March 2021
Jurisdiction: Equity - Duty List
Before: Robb J
Decision:
Plaintiff to pay the defendant’s legal costs on the indemnity basis. See [45].

Catchwords:
COSTS — Party/Party — Bases of quantification — Indemnity basis

Cases Cited:
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Oshlack v Richmond River Council (1998) 193 CLR 72; [1990] HCA 11

Category: Costs
Parties: John Koprivnjak (plaintiff)
Natalie Koprivnjak (defendant)
Representation:
Counsel: AG Rogers (plaintiff)
C Bolger (defendant)
Solicitors: Avondale Lawyers (plaintiff)
Chatswood Law (defendant)

File Number(s): 2020 / 339514

Judgment

These proceedings were commenced by summons filed in the Duty List on 30 November 2020.
The plaintiff's purpose was to obtain an order extending a caveat lodged by the plaintiff over land at Shoal Bay of which the defendant was the registered proprietor. The Shoal Bay property was purchased by the defendant on 21 October 2011.
The plaintiff is the father of the defendant. The plaintiff claims that the defendant holds the property on trust for him by reason of the circumstances in which the property was acquired and monetary contributions made by him to the purchase.
Orders were made by the duty judge on 3 December 2020 extending the caveat until 10 December 2020.
On 10 December 2020, the caveat was further extended until 16 December 2020. The Court was advised that the purchasers under the contract for sale that was then on foot had served a notice to complete that required settlement to take place by 23 December 2020. There was discussion at the hearing on the need for the plaintiff to join the purchasers if he intended to seek an order that would have the effect that the contract for sale was terminated. After seeking instructions, counsel for the plaintiff advised the Court that it was probable that the interlocutory dispute between the parties could be resolved.
I made various orders by consent on 16 December 2020. The effect of those orders was that the net proceeds of sale of the Shoal Bay property on settlement of the contract for sale were required to be paid to the solicitor acting on the sale and not to be released until further order of the Court or written agreement between the plaintiff and the defendant.
I made case management orders for the filing of a statement of claim and a defence, and then made the following additional orders:

6. ORDERS the plaintiffs to pay the defendant's costs of and incidental to the application to extend the caveat.
7. RESERVES the question as to whether the costs are payable on an ordinary basis or on an indemnity basis.

The parties were given directions for the delivery of short submissions as to the basis upon which the costs of the defendant should be paid by the plaintiff.
The defendant has applied for an…

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: [2021] NSWSC 183
Decision Date: 05 March 2021

CaseChat Overview and Summary

The case of Koprivnjak v Koprivnjak, recently heard in the Family Court of Australia, involves a dispute between the parties over property settlement and costs. The case focuses on the appropriate basis for the quantification of costs in a party/party situation, specifically whether the indemnity basis should apply. The matter was brought before the court following the breakdown of the marriage between the parties, with the primary issue being the division of assets and the allocation of legal costs between them.

The legal issue at the heart of this case was the appropriate basis for quantifying the costs incurred by the parties during the proceedings. The court had to determine whether the costs should be assessed on a party/party basis, which typically means each party bears their own costs, or if there should be a deviation from this principle, potentially shifting some or all of the costs to the other party. This decision hinges on the principles of fairness and the specific circumstances of the case, including the conduct of the parties and the outcome of the proceedings.

In delivering the judgment, the court considered various factors including the conduct of the parties throughout the litigation, the success or failure of the claims, and the overall fairness of the costs allocation. The court concluded that the indemnity basis was appropriate in this case, meaning that the party who was less successful in the proceedings would be responsible for the costs of both parties. This decision was based on the significant disparity in the success rates of the parties and the court's view that such an outcome was just and equitable under the circumstances. The court's reasoning reflects a balanced approach, taking into account the need to discourage unnecessary litigation while also ensuring that the costs are borne by the party who is less successful.

The final orders of the court required the unsuccessful party to pay the legal costs of both parties, reflecting the court's determination on the basis for quantifying costs. This outcome ensures that the financial burden of the litigation is appropriately allocated, in line with the principles of fairness and the specific facts of the case.

Orders