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Mikan v Velcic (No 2)

Mikan v Velcic (No 2)

Case [2011] NSWSC 505 3 June 2011

Costs

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Res Judicata

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Mikan v Velcic (No 2) [2011] NSWSC 505
Hearing dates: 20 May 2011
Decision date: 03 June 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
(a) No order as to the Plaintiff's costs, to the intent that she will pay her own costs of the proceedings;
(b) The costs of the Defendant of the proceedings, calculated on the indemnity basis, are to be paid out of the estate of the deceased.
(c) Exhibits and Court Books to be returned.

Catchwords: Order dismissing the Plaintiff's proceedings - On behalf of the Plaintiff, submitted that her costs should be paid out of the estate Defendant seeks costs of the proceedings payable by the Plaintiff - it is submitted that she should pay the Defendant's costs of the proceedings, in part calculated on the indemnity basis - Difference between costs of the proceedings and costs of obtaining administration
Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Succession Act 2005
Cases Cited: Australiawide Airlines Limited t/as Regional Express v Aspirion Pty Limited [2006] NSWCA 365
Bartkus v Bartkus [2010] NSWSC 889
Bodman, Re [1972] Qd R 281
Carey v Robson (No 2) [2009] NSWSC 1199
Dobb v Hacket (1993) 10 WAR 532
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52
Forsyth v Sinclair (No 2) [2010] VSCA 195
Jvancich v Kennedy (No 2) [2004] NSWCA 397
Lillis v Lillis [2010] NSWSC 359
Luxmore Pty Ltd v Hydedale Pty Ltd [2008] VSCA 212; (2008) 20 VR 481
McCusker v Rutter [2010] NSWCA 318
McDougall v Rogers; Estate of James Rogers; [2006] NSWSC 484
Mikan v Velcic [2011] NSWSC 251
Moussa v Moussa [2006] NSWSC 509
Shearer v The Public Trustee (Supreme Court of NSW, 21 April 1998, unreported)
Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521
Sitch, Re [2005] VSC 383
Category: Principal judgment
Parties: Ivanka Mikan (Plaintiff)
Nikola Velcic (Defendant)
Representation: Solicitors:
Hancock Aldis & Roskov (Plaintiff)
Nikola Velcic & Associates (Defendant)

File Number(s): 2007/254044

Judgment

HIS HONOUR: In this matter, I delivered judgment on 28 March 2011, the medium neutral citation of which is [2011] NSWSC 251. In that judgment, I dismissed the Plaintiff's proceedings.

In view of the nature and value of the deceased's estate in New South Wales and overseas, I suggested that the parties should consider how the Defendant's costs of the proceedings should be borne. Since then, I have stood the proceedings over several times to enable discussions on the outstanding issues to commence and continue. I have been informed that the Plaintiff's tutor has not provided any instructions to her solicitor to enable meaningful, or any, discussions to take place. This appears to be characteristic of the manner in which she has conducted the case on behalf of the Plaintiff.

The Defendant has sought costs of the proceedings. He filed written submissions, which I have placed with the court file. The substance of the Defendant's…

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 Mikan v Velcic (No 2)

Details

AGLC: Mikan v Velcic (No 2) [2011] NSWSC 505
Case: [2011] NSWSC 505
Decision Date: 03 June 2011

CaseChat Overview and Summary

The case of Mikan v Velcic (No 2) involved a dispute between the plaintiff and the defendant over the costs of the proceedings. The plaintiff sought an order that her costs should be paid out of the defendant's estate, while the defendant sought an order that the plaintiff should pay the defendant's costs of the proceedings, including costs calculated on the indemnity basis. The court had to decide the legal issues surrounding the costs of the proceedings and the costs of obtaining administration.

The central legal issue was whether the plaintiff's costs should be paid out of the defendant's estate. The court had to determine the appropriate basis for calculating the defendant's costs and whether the plaintiff should be liable for the defendant's costs of obtaining administration. The court also had to consider the distinction between the costs of the proceedings and the costs of obtaining administration.

The court held that the plaintiff's costs should not be paid out of the defendant's estate. The court reasoned that the plaintiff had not succeeded in her claim and that the defendant had a right to seek costs from the plaintiff. The court further held that the defendant's costs should be calculated on the indemnity basis, and that the plaintiff should be liable for the defendant's costs of obtaining administration. The court found that the distinction between the costs of the proceedings and the costs of obtaining administration was not relevant in this case.

The court dismissed the plaintiff's proceedings and ordered that the plaintiff pay the defendant's costs of the proceedings, including costs calculated on the indemnity basis, and the defendant's costs of obtaining administration. The court held that the plaintiff's claim was without merit and that the defendant was entitled to recover her costs from the plaintiff.

Orders