Lyko v Derkatch (No 2) - [2018] SADC 141

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
LYKO v DERKATCH (No 2)
[2018] SADC 141
Reasons for Decision of Her Honour Judge Schammer
21 December 2018
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE
In 2012, Ms Petrenko (deceased) commenced proceedings against her former partner, Mr Tsiplakidis (deceased) seeking an order pursuant to the Domestic Partners Property Act 1996 that he transfer to her his interest in a property at Alberton.
Both Ms Petrenko and Mr Tsiplakidis were registered as joint owners of that property.
Prior to his death, Mr Tsiplakidis signed and lodged a Transfer seeking to effect a severance of that joint tenancy. The Transfer was not registered prior to Mr Tsiplakidis' death, in the absence of Ms Petrenko (and/or the couple's daughter, the plaintiff) producing the Certificate of Title for the property to the Lands Titles Office.
The plaintiff's action was defended and a Cross-Action maintained by Mr Tsiplakidis (and then his Estate) on the basis that the joint tenancy had been severed.
The plaintiff's action was dismissed for non-compliance with various court orders by order of Master Keith made on 23 June 2016, being after the death of Mr Tsiplakidis. The Master reserved the question of costs of the plaintiff's action and of the defendant's application to dismiss that action, pending the determination of the Cross-Action.
The Cross-Action, amended to include a claim for compensation for the use and occupation of the property on the basis of an ouster, proceeded to trial over seven days.
There were five issues agitated in that trial namely:
1. The question of Mr Tsiplakidis' capacity at the time of signing and lodging the Transfer.
2. Whether the joint tenancy in the property had been unilaterally severed.
3. Whether the joint tenancy in the property had been severed by the mutual conduct of the parties.
4. Whether it was unconscionable for the plaintiff to have the benefit of survivorship such that equity should impose a constructive trust over one half of the interest in the property held by the plaintiff, for the benefit of the estate of Mr Tsiplakidis.
5. The ouster claim.
Following the trial I determined issues 1 and 5 in favour of the defendant, and issues 2, 3 and 4 in favour of the plaintiff.
Judgment was entered on the Cross-Action in favour of the defendant in the sum of $28,435.69 (inclusive of interest).
Whether:
1. DCR 263(2)(g) applies with respect to the costs of the Cross-Action.
2. An order should be made departing from the general rule as to costs with respect to either the plaintiff's action or the Cross-Action.
HELD:
1. It is appropriate to make an order to the contrary, such that DCR 263(2)(g) does not apply to the determination of costs with respect to the Cross-Action.
2. Costs of the plaintiff's action (including the costs of and incidental to FDN 48) and the Cross-Action are to be awarded on the basis of a broad axe assessment, having regard to the respective successes of the parties on the issues in dispute.
3. The defendant is to pay the plaintiff 20 per cent of her costs of the entire proceedings, on a party/party basis, less the cost of one day's trial fee.
District Court Act 1991 s 42; District Court (Civil) Rules 2006 r 263, referred to.
Macks v Viscariello (No 2) [2018] SASCFC 106; Ramsey v Annesley College (No 2) [2013] SASC 145; Excelsior Land Holdings Pty Ltd v Alan Sheppard Constructions Pty Ltd [2012] SASCFC 119; Parabanks Shopping Centre Pty Ltd v City of Salisbury (No 2) [2013] SASC 204; Ruddock v Vadarlis (No 2) (2001) 115 FCR 229; Lesses v Maras (No 3) [2017] SASCFC 154; Lyko v Derkatch [2018] SADC 90; Andrew v Grove [1902] 1 KB 625; Knight Frank Australia Pty Ltd v Paley Properties Pty Ltd (2014) 120 SASR 532, considered.

LYKO v DERKATCH (No 2)
[2018] SADC 141
Introduction

At all material times, Valentina Petrenko (deceased) (Ms Petrenko) and Nicolas Tsiplakidis (deceased) (Mr Tsiplakidis) were registered as the joint owners of a property at 54 Melbourne Place, Alberton (the property) being a property jointly acquired by them in October 1963. They have a daughter, Lydia Lyko (the plaintiff).
On 3 July 2012 Ms Petrenko issued this action against Mr Tsiplakidis seeking an order pursuant to the Domestic Partners Property Act 1996, that Mr Tsiplakidis transfer his interest in the property to her.
On 11 March 2014, a Transfer signed by Mr Tsiplakidis to effect the severance of the joint tenancy in the property was lodged at the Lands Titles Office, but was never registered (the Transfer).
Mr Tsiplakidis died on 19 December 2014. His great-nephew, Alexander Derkatch (the defendant) was appointed Executor of his estate.
On 21 November 2015, the defendant filed a Defence and Counterclaim (Cross-Action) alleging, inter alia, that the joint tenancy with respect to the property was severed by the unilateral action of Mr Tsiplakidis and/or the mutual conduct of the parties.
Ms Petrenko died on 22 November 2015. The plaintiff was appointed Executor of her estate.
On 8 June 2016, the defendant issued an application (FDN 48) seeking an order that the plaintiff’s action be dismissed in light of numerous and ongoing procedural breaches by the plaintiff.
On 23 June 2016, the plaintiff’s action against the defendant was dismissed by order of Master Keith. Master Keith reserved the question of costs of that action and FDN 48, pending the determination of the Cross-Action. He certified the costs of the argument with respect to FDN 48 as fit for counsel.
The Cross-Action remained on foot and was amended on 30 November 2016 to include an allegation that Mr Tsiplakidis (and/or the defendant) was wrongfully excluded from the property from a date unknown to the defendant but pleaded to be from mid-2010. By that amended pleading it was alleged the plaintiff was liable to pay the defendant reasonable compensation for use and occupation of the property from mid-2010.
The Cross-Action, in its further amended form, proceeded to trial before me over seven days commencing 20 November 2017.
The issues in dispute and for my determination were:
1.Capacity – did Mr Tsiplakidis have capacity when he signed the Transfer (and/or on 11 March 2014)?
2.Unilateral severance – if Mr Tsiplakidis had capacity, did the steps taken by him in signing the Transfer, lodging it with the LTO and requesting the production of the Certificate of Title with respect to the property effect a severance of the joint tenancy in equity, despite the Transfer not being registered?
3.Mutual severance – in the alternative, was the joint tenancy in the property severed by the mutual conduct of the parties?
4.Constructive Trust claim – if not, is it unconscionable for the plaintiff to have the benefit of survivorship such that equity should impose a constructive trust over half of the interest held in the property by the plaintiff, for the benefit of the estate of Mr Tsiplakidis?
5.Ouster claim – was Mr Tsiplakidis (and/or the defendant) wrongfully excluded from the property and if so when and for what period? If there was an ouster, what if any compensation should be paid by the plaintiff to the defendant?
By judgment dated 30 August 2018 I made the following findings:
1.Mr Tsiplakidis had capacity when he signed the Transfer on 4 March 2014.
2.Mr Tsiplakidis’ instructions to lodge the Transfer for registration were likely given at the time of execution of the Transfer, despite the lodgement occurring on 11 March 2011.
3.The steps taken by Mr Tsiplakidis to execute and lodge the Transfer and to request the production of the Certificate of Title by Ms Petrenko, both via his solicitors and the LTO, did not effect a severance of the joint tenancy in the property.
4.The joint tenancy in the property was not severed by the mutual conduct of Ms Petrenko and Mr Tsiplakidis.
5.The circumstances as I find them are not such as to require equity to impose a constructive trust over half of the interest held in the property by the plaintiff, for the benefit of the estate of Mr Tsiplakidis.
6.Ms Petrenko wrongfully excluded Mr Tsiplakidis from the property on or about 1 January 2011 when she denied his request to return to live at the property. The ouster continued until the date of Mr Tsiplakidis’ death.
7.The plaintiff is liable to pay to the defendant occupation rent for the period of the ouster, such sum not to exceed $31,707 and being subject to reduction upon receipt of and consideration of further evidence pertaining to the holding costs for the property during the period of the ouster.
I ordered that I would hear the parties as to the issue of holding costs with respect to the property for the period of the ouster and as to precise form of any orders sought arising from those findings, interest and costs.
The parties reached agreement on the issue of holding costs and interest.
On 30 November 2018, I entered judgment for the defendant on the Cross-Action in the sum of $28,435.69 (inclusive of interest) and otherwise dismissed the claims set forth in paragraphs 14.1 and 14.2 of the Fourth Counterclaim dated 23 November 2017.
On that same date, I heard argument on the only issues outstanding with respect to the proceedings namely, the issue of costs with respect to the plaintiff’s action, the Cross-Action and FDN 48. In addition to oral submissions I have had the benefit of written submissions filed by both parties on 30 November 2018.
I subsequently reserved my decision. These are my reasons for decision.
The Act and Rules
Pursuant to s 42 of the District Court Act 1991 (the Act), costs are in the discretion of the court and may be awarded against any person. The discretion is unfettered but must be exercised judicially.[1]
[1] Macks v Viscariello (No 2) [2018] SASCFC 106 at [5].
However, pursuant to s 42(2) of the Act:
If–
(a)an action for the recovery of damages or any other monetary sum is brought in the Court; and
(b)the action might have been brought in the Magistrates Court; and
(c)the plaintiff recovers less than an amount fixed by the rules for the purposes of this paragraph;
no order for costs will be made in favour of the plaintiff unless the Court is of the opinion that it is just in the circumstances of the case that the plaintiff should recover the whole or part of the costs of action.
Pursuant to Rule 263 of the District Court (Civil) Rules 2006 (DCR 263), as a general rule, costs follow the event. The general rule is, however, subject to exceptions, including the exception in DCR 263(2)(g) which is to apply ‘subject to the Court’s order to the contrary’, namely:
…in an action founded on a claim for damages or any other monetary sum (other than a claim for defamation), general costs of action are not to be awarded in favour of the successful plaintiff unless the amount awarded exceeds $60,000.
There is no dispute that the Cross-Action was ‘an action founded on a claim for damages or any other monetary sum (other than a claim for defamation)’ and that the amount awarded was less than $60,000, meaning that ‘subject to the Court’s order to the contrary’, DCR 263(2)(g) applies.
In Ramsey v Annesley College (No 2),[2] Blue J considered the operation of s 40(2) of the Supreme Court Act 1935 (SCA) and SCR 263(2)(h) which at that time stated:
(2)The general rule is, however, subject to specific rules to the contrary and also to the following exceptions (which apply subject to the Court’s order to the contrary) –
…
(h) in an action founded on a claim for damages or any other monetary sum (other than a motor accident claim or a claim for defamation), general costs of action are not to be awarded in favour of the successful plaintiff unless the amount awarded exceeds $75,000.
[2] [2013] SASC 145.
Blue J held that the Court had a general discretion to depart from s 40(2) SCA and SCR 263(2)(h), which discretion was unfettered but may be informed by factors such as the nature of the action, the complexity of the factual and legal issues, the public profile of the parties and publicity generated[3] and the amount recovered.[4]
[3] The case before him being an action for wrongful dismissal which generated publicity.
[4] [2013] SASC 145 at [33].
Further, in the exercise of the court’s discretion as to costs, it has been recognised that although a party may be successful in achieving a judgment in its favour, it may, nevertheless, have been unsuccessful with respect to various issues (or ‘events’) as advanced within its claim and that in such circumstances, it is appropriate for the court to treat those distinct issues as distinct events when exercising its discretion as to costs.[5]
[5] Excelsior Land Holdings Pty Ltd v Alan Sheppard Constructions Pty Ltd [2012] SASCFC 119 at [10]; Parabanks Shopping Centre Pty Ltd v City of Salisbury (No 2) [2013] SASC 204.
In Ruddock v Vadarlis (No 2),[6] Black CJ and French J held that:
…a successful party who has failed on certain issues may not only be deprived of those costs but may be ordered as well to pay the other parties’ costs of them. In this sense “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or law.
[6] (2001) 115 FCR 229 at 234 [11].
In Lesses v Maras (No 3),[7] albeit a defamation case, the Full Court observed that in dealing with cases where a party had ‘mixed success’:
…a court may in appropriate circumstances reduce the costs ordered in favour of the overall successful party, and further may order that party to pay the opponent’s costs, in respect of such issues. When the court considers that the discretion should be so exercised, it will usually make an order for payment of a proportion of one party’s costs by the other party reflecting a broad axe assessment, even when it considers that the successful party should pay the opponent’s costs in respect of such issues. (citations omitted)
[7] [2017] SASCFC 154 at [82].
In Macks v Viscariello (No 2),[8] the Full Court adopted what was said in Lesses v Maras (No 3),[9] and stated:
Factors to be considered when assessing costs on separate issues include determining whether the issues were separate and distinct, the importance of the issues (including whether they had merit), and the time taken at trial in litigating those issues.
[8] [2018] SASCFC 106 at [32]-[33].
[9] [2017] SASCFC 154 at [82].
Submissions and position advanced by defendant
The defendant submitted that as he had achieved success on the Cross-Action and the plaintiff’s action had been dismissed for substantial procedural non-compliance following his successful application, he was entitled to an order for costs in his favour, on a party/party basis, with respect to the Cross-Action, the plaintiff’s action and the costs of and incidental to FDN 48.
Albeit acknowledging the prima facie operation of DCR 263(2)(g), the defendant submitted that there were factors which supported an exercise of my discretion to depart from that rule, and to make an order ‘to the contrary’ namely:
1.the fact the defendant’s action was a Counterclaim issued in this Court in response to the plaintiff’s now-dismissed action, such that this Court was the appropriate forum for that Counterclaim;
2.the plaintiff had failed on two “issues”, namely the question of Mr Tsiplakidis’ capacity and whether the plaintiff and/or Ms Petrenko had knowledge of the request for the production of the Certificate of Title, meaning the trial took longer than it should have. In this respect, it was submitted that the evidence of Dr Fraser, Mr Gladys and Mr Jackson had been required to address these issues, resulting in considerable additional cost to the defendant; and
3.the trial was delayed to meet the convenience of the plaintiff, resulting in the incurring of an additional daily trial fee.
In addition, it was submitted that the defendant should be entitled to an order for the whole of his costs on the Cross-Action, and the plaintiff should not be awarded any costs on the Cross-Action, due to these latter two matters. It was submitted that if those matters, and the issue of ouster on which the defendant was successful, had been conceded by the plaintiff, the trial could have been dealt with swiftly as a question of law on the issue of severance.
As to the plaintiff’s dismissed action, it was submitted by the defendant he had been vexed by the plaintiff’s continued and substantial non-compliance with court orders, such that he should be entitled to an award of costs in his favour with respect to that dismissed action, and FDN 48.
Submissions and position advanced by plaintiff
The plaintiff conceded that despite the prima facie operation of DCR 263(2)(g) with respect to the Cross-Action, the circumstances of this case were such that the Court may see fit to exercise its discretion to depart from that rule. In this respect, it was noted that despite the potential for the Cross-Action to be transferred to the Magistrates Court following the dismissal of the plaintiff’s action, the complexity of the legal and factual issues meant that it was not inappropriate for the Cross-Action to remain in this Court.
However, the plaintiff submitted that this was an appropriate matter for the court to adopt a ‘broad axe’ approach, and that rather than making separate costs orders with respect to the plaintiff’s action, the Cross-Action and FDN 48, the Court should consider the entirety of the proceedings and the relative successes (and failures) of the parties and make a ‘broad axe’ order, such that there be no order for costs on the plaintiff’s action and an order that the defendant pay the plaintiff 20 per cent of her party/party costs of the Cross-Action, including the trial.
In this respect, it was submitted that the plaintiff had succeeded on those issues which had, in fact, been agitated in her dismissed action, namely those relevant to the question as to whether the joint tenancy had been severed. The only successful aspect of the defendant’s Cross-Action had in fact been on the issue of whether there had been an ‘ouster’, being a component of the Cross-Action which was not agitated until the pleadings were amended after the plaintiff’s action was dismissed.
Further, it was submitted that despite the dismissal of the plaintiff’s action, FDN 48 was issued after the deaths of both Ms Petrenko and Mr Tsiplakidis, such that there was in fact, no ‘work’ for the plaintiff’s action to do. As the Transfer had never been registered, absent a declaration that the joint tenancy had been severed, the title to the property had passed in full to Ms Petrenko upon Mr Tsiplakidis’ death, in any event.
It was noted that rather than making an order for costs in the defendant’s favour upon dismissing the plaintiff’s action, which would ordinarily follow having regard to a dismissal based on the plaintiff’s continued non-compliance with court orders being the basis for FDN 48, the Master had reserved the question of costs of both the plaintiff’s action and FDN 48. The Master stated:[10]
In the event that the cross action is unsuccessful it may be appropriate to order the defendant to pay the plaintiff’s costs of action. The question of costs is reserved pending the determination of the cross-action.
[10] Reasons for Decision of District Court Master Keith delivered to the parties on Thursday 23 June 2016 at [54].
The plaintiff submitted that on the primary issue in dispute between the parties, being whether the joint tenancy in the property had been severed, the plaintiff had been wholly successful and the defendant wholly unsuccessful. As such, despite the procedural non-compliance which had led to the plaintiff’s action being dismissed, and the defendant being awarded judgment in his favour (albeit for a modest sum only) on the Cross-Action, a costs order should be made to give effect to an outcome that would result in the plaintiff be awarded the greater share of the costs of the trial, and of the whole action, when viewed in its entirety.

In terms of the issues that were in dispute, when viewed as ‘events’, the plaintiff submitted that it was appropriate to consider those issues to be the five issues that were identified in my judgment, and reiterated at paragraph 11 herein. It was submitted that the plaintiff had succeeded on three out of five of those issues and that with respect to the second issue (unilateral severance) the arguments as advanced by the defendant were against the weight of authority.
Further, as to the issue of capacity, it was submitted that although the defendant was successful on that issue, as the assumptions underlining Dr Fraser’s opinion were found to be erroneous, the plaintiff should not be called upon to pay the costs of trial associated with Dr Fraser’s evidence.
Further it was submitted that the defendant’s misconduct, in lying to the court,[11] also added to the costs incurred by the parties at trial.
[11] Lyko v Derkatch [2018] SADC 90 at [23].
Discussion
In determining the issue of costs with respect to the action as a whole, the unusual circumstances of the action are important to consider.
On 21 July 2012, shortly after the plaintiff’s action was issued and served, Mr Tsiplakidis attended at the property and shot Ms Petrenko. During that incident, the plaintiff’s husband was also stabbed.
Mr Tsiplakidis was charged with the offences of attempted murder, aggravated threaten harm and aggravated assault, arising from that incident. These charges proceeded to trial before a jury in the Supreme Court in June 2013, resulting in the accused being acquitted on all counts. Thereafter intervention orders were put in place whereby both the plaintiff and Ms Petrenko were named as protected persons and Mr Tsiplakidis was the defendant. The terms of these orders prevented Mr Tsiplakidis from entering or remaining in the vicinity of the property, or from contacting or communicating, either directly or indirectly, with Ms Petrenko or the plaintiff.
It was in this context that the plaintiff’s action initially proceeded.
In or about October 2013, although the precise date is uncertain, Mr Tsiplakidis executed an Enduring Power of Attorney and Power of Guardianship naming the defendant in each instance. He had also made a will in the defendant’s favour. These appointments were revoked for a brief period due to a ‘falling out’ between Mr Tsiplakidis and the defendant, but were reinstated on 13 February 2014, at which time Mr Tsiplakidis also reinstated the defendant as a beneficiary under his will.
It is clear from Mr Gladys’ file that despite his denial to the contrary, during the period from July 2013 to March 2014 the defendant was actively involved as a driving force in steps taken by Mr Tsiplakidis, then aged 88, through his lawyer Mr Gladys, in seeking to sever the joint tenancy both with respect to the property and another property owned jointly by Mr Tsiplakidis with another daughter, Ms Gousev.
On 4 March 2014 Mr Tsiplakidis signed the Transfer. He was admitted to hospital suffering hallucinations on 16 March 2014, at which time hospital staff took a history from persons described to be his ‘nephew and daughter-in-law’ that these hallucinations had commenced 12 days earlier.
It is against this background that a request was then made, via Mr Tsiplakidis’ solicitor, for Ms Petrenko to produce the Certificate of Title for the property to enable the Transfer to be registered. That request was never complied with. Although some steps were taken by Mr Gladys to advance that issue in April 2014, via the LTO, Mr Tsiplakidis died before the Transfer was registered.
Despite Mr Tsiplakidis’ death, the plaintiff’s action remained on foot. When that action was dismissed, the issue agitated by it, being the ownership of the property, remained agitated, albeit through the mechanism of the Cross-Action.
The proceedings were characterised by the considerable tension between the plaintiff and the defendant, given the nature of the historical relationship between the plaintiff, Ms Petrenko and Mr Tsiplakidis, the fact of the shooting incident and its aftermath and the defendant’s continued and ultimately unsuccessful attempts to claim, through Mr Tsiplakidis’ estate, half of the share of the property.
Findings
DCR 263(2)(g)
The defendant was bound to bring the Cross-Action in this Court.
Given the history of the proceedings and the complex factual and legal basis pertaining to the issues in dispute, and the monetary value of the property, I do not think it was inappropriate for the Cross-Action to continue in this Court, after the dismissal of the plaintiff’s action.
As such, I consider this is an appropriate matter to make an order ‘to the contrary’ as foreshadowed in DCR 263(2)(g).
I decline to apply DRC 263(2)(g), insofar as it would otherwise be applicable in determination of the issue of costs with respect to the Cross-Action.
Cross-Action
The defendant was ultimately wholly unsuccessful on all arguments he raised pertaining to the severance of the joint tenancy. Further, despite some of the trial being devoted to the issue as to whether or not Ms Petrenko and/or the plaintiff knew of the request to produce the Certificate of Title, this was but one aspect of the various arguments advanced by the defendant and therefore canvassed during cross-examination of the plaintiff. In my view, this was not an ‘issue’, akin to an ‘event’ of the type referred to in the authorities. I agree with the plaintiff’s submissions that the issues in dispute on the Cross-Action are the five issues outlined at paragraph 11 herein.
Counsel for the plaintiff contended that had the plaintiff conceded the request to produce the Certificate of Title had been received, and the issue of capacity, the trial could have proceeded quickly on the resolution of a question of law.
I disagree with that proposition.
As is evident from a review of the transcript, the factual submissions advanced by the defendant on the issues of severance also required the consideration of oral and documentary evidence, going beyond the question of the request for production of the Certificate of Title, and the issue of capacity.
The Cross-Action proceeded to trial over seven days. At the commencement of the trial the defendant was granted leave to further amend the pleadings to better particularise the claims relating to mutual severance and the imposition of a constructive trust.
During the trial, the court did not sit for a full morning and a full afternoon due to the unavailability of the plaintiff’s counsel, meaning the defendant incurred an additional daily trial fee, through no fault of his own.
Of the seven sitting days, approximately one day was dedicated to evidence pertaining to the ouster claim. Dr Fraser’s evidence occupied about approximately four hours, Mr Gladys’ evidence occupied approximately four hours and Mr Jackson’s evidence occupied approximately an hour and a half. While Dr Fraser’s evidence pertained solely to capacity, and Mr Jackson’s evidence also related predominantly to that issue, Mr Gladys’ evidence was relevant not only to capacity but to the issue of severance.
Mr Gant’s evidence (on severance and in particular the steps taken to obtain the Certificate of Title) occupied 20 minutes and Mr Carter’s evidence (on the issue of ouster) occupied 15 minutes. The balance of the time was dedicated to legal argument, opening and closing submissions and the evidence of the plaintiff and defendant, which necessarily crossed numerous issues.
The defendant did achieve a degree of success on the Cross-Action receiving an award of damages in his favour on the ouster claim. However, the monetary value of that claim was modest having regard to the overall monetary value of the issues in dispute.
The defendant was forced to pursue the ouster claim to trial, incurring costs in doing so and in defending the plaintiff’s unsuccessful challenge to Mr Tsiplakidis’ capacity. I estimate that the proportion of the trial devoted to those issues was in the order of two to two and a half days, although Dr Fraser’s evidence was of only limited assistance to the Court.[12]
[12] Lyko v Derkatch [2018] SADC 90 at [304]-[311].
On the issue of capacity, the Transfer was executed by Mr Tsiplakidis at a time when the defendant was having considerable influence on his financial decision making and just prior to his admission to hospital suffering hallucinations, following which he was diagnosed as suffering dementia.
It is against this background that the plaintiff challenged Mr Tsiplakidis’ capacity as at the time of the execution of the Transfer. While ultimately unsuccessful in rebutting the presumption that Mr Tsiplakidis had capacity at that time, the position maintained and advanced by the plaintiff on this issue was arguable and had some prospects of success, particularly in light of the erroneous assumptions made by Dr Fraser, who was the only medical expert relied upon by the defendant on this issue.
Conversely, the unsuccessful arguments maintained by the defendant as to severance, particularly as to unilateral severance, were against the weight of authority.
It was submitted by both counsel respectively that the conduct (and/or position adopted and maintained by the litigants on discrete factual issues) should play a role in any costs’ determination. However, while there are circumstances where misconduct of a litigant may result in an order that the litigant pay the costs of the other party,[13] the relevant misconduct must be connected with, or leading up to, the litigation.[14] Further it must be more than the fact that the relevant evidence of a party was rejected and it must have caused or contributed to the existence, continuation or the extent of the litigation.[15]
[13] Andrew v Grove [1902] 1 KB 625, 628.
[14] Mercorella v Ellis, per Debelle J, No S4752, 15 August 1994, unreported.
[15] Knight Frank Australia Pty Ltd v Paley Properties Pty Ltd (2014) 120 SASR 532 at [53]-[58].
The misconduct relied upon by the defendant was the plaintiff’s failure to acknowledge the receipt by her and/or Ms Petrenko of any request to produce the Certificate of Title. The misconduct relied upon by the plaintiff was the defendant’s refusal to concede the extent of his involvement in influencing and guiding Mr Tsiplakidis’ financial decision making. In neither instance did these matters ultimately give rise to any legal remedy in favour of the other party, albeit adding to the length of the trial in each instance.
Having carefully considered all of these matters, I find that approximately 40 per cent of the costs of trial were costs properly incurred by the defendant in pursuing issues upon which he achieved success, with the balance being incurred on the unsuccessful aspects of the Cross-Action, in addition to the otherwise avoidable incurring of one day’s daily trial fee.
As such when considered as a whole, the plaintiff has achieved a slightly greater degree of success than the defendant having regard to the matters agitated in the Cross-Action.
Plaintiff’s Action
As to the plaintiff’s action, while the plaintiff was dilatory and failed to comply with numerous court orders, resulting in the abandonment of a trial date and adding to the costs of the plaintiff’s action,[16] ultimately the plaintiff achieved success on the primary issue which was always in dispute and went to the very heart of the action, namely the ownership of the property.
[16] Second Affidavit of Frederick Mark Boyd Turner sworn on 8 June 2016 (FDN 47).
The approach adopted by the learned Master, reserving costs of that action to await the outcome of the Cross-Action, was a considered and appropriate approach to adopt having regard to the fact that the plaintiff’s action only remained on foot at that time in any event because of the issue being agitated in the Cross-Action. As such, I agree with the submissions advanced by the plaintiff that it is not appropriate, in this instance, to adopt what may be considered the usual approach following the dismissal of an action for procedural non-compliance, namely an order for costs in favour of the defendant.
Although the defendant obviously unnecessarily incurred the costs of and incidental to FDN 48, including the costs of the argument heard before Master Keith, certified fit for counsel, the plaintiff ultimately succeeded on the issue agitated in that action, albeit ultimately tried through the mechanism of the Cross-Action.
Conclusion
Having regard to all of these matters, I agree with the submission advanced by the plaintiff that it is appropriate to adopt the approach as outlined in Lesses v Maras (No 3),[17] and adopted in Macks v Viscariello (No 2),[18] namely, that costs should be awarded having regard to a broad axe assessment bearing in mind the respective successes of the parties on the issues in dispute, the importance of those issues when considered in the context of the proceedings as a whole and the time taken at trial in litigating those issues.
[17] [2017] SASCFC 154 at [82].
[18] [2018] SASCFC 106 at [32]-[33].
Further, I consider that in order to reduce unnecessary costs being incurred in enforcing the costs orders made by me, it is appropriate that any order be made having regard to the costs of the entirety of the proceedings, taking into account the matters outlined above.
Adopting that approach, and after careful consideration of all of the matters as outlined above, I order that the defendant is to pay to the plaintiff 20 per cent of her costs of the entire proceedings, on a party/party basis, less the cost of one day’s daily trial fee.