Kozlowski v Kozlowski (No 2) - [2013] SASC 66

SUPREME COURT OF SOUTH AUSTRALIA
(Summary Jurisdiction: Civil)
KOZLOWSKI v KOZLOWSKI (NO 2)
[2013] SASC 66
Judgment of The Honourable Justice Peek
6 May 2013
SUCCESSION - FAMILY PROVISION
SUCCESSION - FAMILY PROVISION AND MAINTENANCE - PRACTICE - PROCEDURE, ORDERS AND OTHER MATTERS
Application for costs by a plaintiff whose claim for family provision on an intestacy was granted - the substantive application was resisted by the second defendant only - the plaintiff made an offer of settlement before the institution of proceedings - offer rejected by the second defendant.
Whether the second defendant should pay the party-party costs of the plaintiff.
Held: application for costs granted - it would not be appropriate for the costs of the parties to be paid out of the estate given its small size - the plaintiff's offer of settlment was reasonable considering the size of the estate - the trial would not have been necessary but for the attitude of the second defendant and material parts of her evidence were disbelieved and rejected at trial.
Inheritance (Family Provision) Act 1972 ss 7, 9(8); Supreme Court Civil Rules 2006 rr 263, 264(1), Practice Direction 8.1; Administration and Probate Act 1919 ss 72G, 72H; Supreme Court Act 1935 s 40(1), referred to.
Singer v Berghouse (1993) 67 ALJR 708; Bowyer v Wood (2007) 99 SASR 190; Re McCaffrey (deceased); Hay v Elder's Trustee and Executor Co Ltd (1982) 29 SASR 582; Ellis v Leeder (1951) 82 CLR 645; Kozlowski v Kozlowski [2013] SASC 57, considered.

KOZLOWSKI v KOZLOWSKI (NO 2)
[2013] SASC 66
Civil

PEEK J. Application for costs.
This matter arose from an application by the plaintiff under s 7, Inheritance (Family Provision) Act 1972 seeking provision out of the estate of Mr Marian Kozlowski (the deceased). The deceased’s estate comprises a property at 21 Mendez Street, Paralowie (the Mendez Street house) valued at $275,000 and $500 worth of the deceased’s personal effects. The second defendant was the only party to resist the plaintiff’s application. I delivered judgment on 24 April 2013 after a one day trial on 4 April 2013. I found in favour of the plaintiff and made orders accordingly.[1]
[1] See Kozlowski v Kozlowski [2013] SASC 57.
On 24 April 2013, the plaintiff made an application for costs against the second defendant on a party-party basis and I granted that application giving brief oral reasons. What follows are my full reasons for that decision.
Costs in family provision matters
The Court’s power with respect to costs orders is set down in s 9(8), Inheritance (Family Provision) Act 1972:
(8)The Court may make such order as to the costs of any proceeding under this Act as it considers just.
This section gives the Court a discretion to make whatever costs orders it considers just,[2] and is reflective of the general discretion the Court enjoys in respect of costs.[3] The general rule that costs follow the event yields to what may be the overall justice…

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.

Keep reading for free

Create a free CaseChat account to read Kozlowski v Kozlowski (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] SASC 66
Decision Date: 6 May 2013

CaseChat Overview and Summary

The case of Kozlowski v Kozlowski (No 2) involved a claim for family provision brought by a plaintiff against a second defendant following the death of a family member. The plaintiff sought an order for costs against the second defendant who had resisted the family provision claim. The plaintiff had made an offer of settlement before the commencement of proceedings, which the second defendant rejected. The court was tasked with determining whether the plaintiff was entitled to an order for costs against the second defendant and, if so, whether those costs should be paid out of the estate.

The central legal issue before the court was whether the plaintiff should be granted an order for costs against the second defendant, and if such an order should be funded from the estate. The court considered the reasonableness of the plaintiff's offer of settlement, the size of the estate, the strength of the plaintiff's claim, and the conduct of the second defendant during the proceedings.

The court found that the plaintiff's offer of settlement was reasonable, particularly in light of the size of the estate. It was noted that the second defendant was the sole party to resist the plaintiff's claim and that the trial would not have been necessary if the offer had been accepted. The court specifically rejected parts of the second defendant's evidence, which contributed to the trial being required. Given these factors, the court concluded that it was appropriate to exercise its discretion in favour of granting the plaintiff's application for costs against the second defendant. However, the court also determined that it would not be appropriate for the parties' costs to be paid out of the estate due to its small size.

Accordingly, the court granted the plaintiff's application for costs against the second defendant but ordered that these costs would not be paid out of the estate. The court's decision was based on the reasonableness of the plaintiff's offer, the size of the estate, and the second defendant's role in necessitating the trial through her resistance to the claim and the rejection of her evidence.

Orders

Orders of the court

Held: application for costs granted - it would not be appropriate for the costs of the parties to be paid out of the estate given its small size - the plaintiff's offer of settlment was reasonable considering the size of the estate - the trial would not have been necessary but for the attitude of the second defendant and material parts of her evidence were disbelieved and rejected at trial.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

PEEK J

In my view, the plaintiff’s offer was a very reasonable one and, if accepted, would have placed the second defendant in a substantially better position than she presently is as a result of the orders I made following the trial.Conclusion Given the size of the estate and the strength of the plaintiff’s claim, I find that it would not be appropriate for the parties’ costs to be paid out of the estate.[6] The second defendant was the only party to resist the plaintiff’s application and the offer made by the plaintiff was very reasonable, especially considering the size of the estate. I also note that I specifically rejected the material parts of the second defendant’s evidence.[7] The trial would not have been necessary but for her attitude and her evidence has been disbelieved. Accordingly, I considered that the appropriate exercise of the discretion is to grant the plaintiff’s application for costs against the second defendant.[6] See Kozlowski v Kozlowski [2013] SASC 57 [84].[7] See Kozlowski v Kozlowski [2013] SASC 57 [42]-[44], [61], [63], [84].

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

Full text does not contain this section.