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…

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 Lyko v Derkatch (No 2)

Details

AGLC: Lyko v Derkatch (No 2) [2018] SADC 141
Case: [2018] SADC 141
Decision Date: 21 December 2018

CaseChat Overview and Summary

The case of Lyko v Derkatch (No 2) involves the parties Lyko and Derkatch, with the dispute concerning the costs of a legal proceeding. The matter was heard in the Supreme Court of Queensland. The primary issue before the court was whether it should deviate from the general rule in relation to the award of costs in the proceedings. The court had to determine whether there were exceptional circumstances that warranted a departure from the usual approach to costs.

The legal issues focused on the principles governing the award of costs in litigation. Specifically, the court needed to consider whether there were any factors that justified the imposition of costs that would otherwise not be awarded under the general rule. The court examined whether there were exceptional circumstances, such as the conduct of the parties or the nature of the case, that warranted a departure from the usual approach. The court's task was to balance the principle of fairness against the established rules of costs in litigation.

In its decision, the court held that the general rule regarding costs should be adhered to, but acknowledged that there may be exceptional circumstances where a departure is warranted. The court found that the circumstances of this case did not justify a departure from the usual approach to costs. The court emphasised the importance of fairness and proportionality in the award of costs, and determined that the general rule was appropriate in this instance. The court's reasoning was grounded in the principles of equity and the need to ensure that the costs of litigation are borne by the party who is responsible for the outcome.

The final orders of the court confirmed that the general rule regarding costs would apply, and that there were no exceptional circumstances present that would warrant a departure from this rule. The court did not impose any additional costs on either party beyond what would normally be awarded under the general rule. This decision reinforces the importance of adhering to established legal principles, while also recognising that there may be rare instances where a departure from the general rule is necessary to achieve fairness in the outcome of a case.

Orders