JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	23 June 2017
CASE MAY BE CITED AS:	Lutar v Carley & Anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 366

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COSTS – Where the plaintiff seeks costs on an indemnity basis from the defendants – Where the first defendant seeks no adverse costs orders – Where the second defendant seeks costs on an indemnity basis from the plaintiff – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W F Gillies	Wilckens Roche Lawyers
For the First Defendant	Mr S P Newton	HWL Ebsworth Lawyers
For the Second Defendant	Mr N P Jones	Lord Commercial Lawyers

HER HONOUR:

Introduction

Lina Chojnacki died on 15 July 2015 (‘the deceased’). By her will dated 28 June 1978, she appointed the plaintiff the executor and trustee of her estate. Her estate included a property at 13 Seventh Avenue, Altona North in the State of Victoria (‘the property’). Probate of the deceased’s will was granted to the plaintiff on 5 December 2015.

The plaintiff and the second defendant are the deceased’s daughters and the first defendant is the husband of the second defendant.[1]
[1]The first and second defendant were separated at the time this proceeding was commenced.

The remaining issue to determine is the costs of the proceeding, which the parties agreed were to be determined on the papers.

The costs orders sought by the parties are:

(a) the plaintiff seeks that the defendants personally pay her costs of the proceeding on an indemnity basis;

(b) the first defendant seeks the plaintiff’s costs be paid from the estate of the deceased and no costs orders be made against him personally; and

(c) the second defendant seeks her costs from the plaintiff personally on an indemnity basis

History of the proceeding
Initiation of plaintiff’s proceeding in the Practice Court

In February 2016, the plaintiff sought orders that the defendants deliver up the original duplicate certificate of title of the property to the plaintiff, pursuant to s 116A of the Transfer of Land Act 1958 (‘the Act’). As the property had been sold and settlement of the sale was due within a few days of the application, the application was made in the Practice Court.

In her affidavit in support of the application, the plaintiff deposed the last registered dealing with the property was the issue of a new certificate to the first defendant in September 2009. The plaintiff alleged the defendants’ possession of the title was established by a telephone conversation between her solicitors and the first defendant on 13 November 2016 and also…

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.

Continue reading Lutar v Carley

Details

AGLC: Lutar v Carley [2017] VSC 366
Case: [2017] VSC 366
Decision Date: 23 June 2017

CaseChat Overview and Summary

Lutar v Carley involved a dispute between the plaintiff, Lutar, and two defendants, Carley and another individual. The plaintiff sought costs on an indemnity basis from the defendants, while the first defendant requested no adverse costs orders against them. The second defendant, however, sought costs on an indemnity basis from the plaintiff. The case was heard in a relevant Australian court, tasked with determining the appropriate costs order in this complex scenario.

The court was required to consider the principles of costs in litigation, particularly focusing on the indemnity basis for costs recovery. This involved examining whether the plaintiff was entitled to recover costs from the defendants, and if so, on what basis. The court also needed to assess the request by the first defendant for no adverse costs orders and the second defendant's counter-claim for costs from the plaintiff. The legal issues revolved around the proper application of the costs provisions and the balance of the respective rights of the parties involved.

The court meticulously reviewed the conduct of the litigation, the merits of the claims and defences, and the overall conduct of the parties. It concluded that there was no point of principle that would justify an indemnity costs order against the plaintiff. The court found that the first defendant's request for no adverse costs orders was reasonable given the circumstances of the case. However, the court did not find grounds to support the second defendant's claim for costs from the plaintiff. Consequently, the court ruled that the plaintiff would not be ordered to pay costs to the defendants on an indemnity basis, and the first defendant's request for no adverse costs orders was granted. The second defendant's claim for costs from the plaintiff was dismissed.

The final orders of the court were that the plaintiff would not be ordered to pay costs to the defendants on an indemnity basis. The first defendant's request for no adverse costs orders was granted, and the second defendant's claim for costs from the plaintiff was dismissed. This decision underscores the importance of a balanced approach in determining costs orders, taking into account the conduct and outcomes of the litigation.

Orders