(a) Orders that the Plaintiff pay the Defendant’s costs of the notice of motion filed on 6 May 2019.
(b) Orders that the whole of the proceedings be dismissed.
(c) Orders that the Plaintiff pay the Defendant's costs, calculated on the ordinary basis, of the proceedings, up to and including 27 March 2019, and after 27 March 2019, the Plaintiff pay the Defendant’s costs, calculated on the indemnity basis, of the proceedings (other than in respect of the costs of the notice of motion.
(d) To the extent that the Defendant's costs, calculated on the indemnity basis, of the proceedings, are not paid by, or recovered from, the Plaintiff, those costs are to be paid, or retained, as the case may be, out of the notional estate of the deceased.
Catchwords:
CIVIL PROCEDURE – Interlocutory application –Claim by Plaintiff, a son of the deceased, for a family provision order – Application for security for costs by defendant, the spouse of the deceased in a long marriage – The Plaintiff not ordinarily resident in New South Wales but ordinarily resident in Macedonia – Plaintiff has no property in New South Wales – Plaintiff’s solicitor conducting proceedings for Plaintiff on basis of a conditional costs agreement – Whether competing factors in favour of not granting order for security – Security for costs ordered – The Plaintiff and Defendant disagree as to the amount of security to be provided – Amount of security to be provided determined by the Court – When orders proposed to be made Plaintiff accepts no reason for proceedings to continue – Consent to dismissal of the proceedings
COSTS – Security for costs – Plaintiff resident outside jurisdiction – Orders that Plaintiff pay the Defendant’s costs of the notice of motion
SUCCESSION – FAMILY PROVISION – COSTS – Following dismissal of the suit for family provision order – Offer of Compromise served about 4 months prior to the hearing of notice of motion for security for costs – Consent to dismissal of the proceedings - Defendant obtains order no less favourable than offer made in Offer of Compromise – Whether Court’s discretion should be exercised to depart from UCPR – Overall justice of the case does not warrant exercise of the Court’s discretion to “order otherwise”.
[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.
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AGLC
Milosevska v Milosevski [2019] NSWSC 711
Case
[2019] NSWSC 711
Decision Date
CaseChat Overview and Summary
In Milosevska v Milosevski, the Plaintiff, a son of the deceased, sought a family provision order from the court. The Defendant, the deceased's spouse in a long marriage, responded by applying for security for costs. The Plaintiff, who was not ordinarily resident in New South Wales but rather in Macedonia, had no property in the jurisdiction and was proceeding on the basis of a conditional costs agreement with his solicitor. The legal issues revolved around whether the court should grant the application for security for costs, considering the competing factors involved. The court ultimately decided that while there were factors against granting the order, the Plaintiff's lack of residency and property in New South Wales, as well as his reliance on a conditional costs agreement, were significant considerations in favour of the Defendant's application. Consequently, the court ordered the Plaintiff to provide security for costs.
The court's reasoning was grounded in the need to balance the interests of both parties, particularly the Defendant's right to protect her financial interests against the Plaintiff's right to pursue his claim. The Plaintiff's absence from the jurisdiction and his lack of assets in New South Wales increased the risk to the Defendant if the Plaintiff were to fail in his claim. Additionally, the conditional costs agreement meant that the Plaintiff's solicitor was incentivised to continue the proceedings regardless of the merits, further justifying the need for security. The court held that these factors outweighed the Plaintiff's position and ordered him to provide security for the Defendant's costs. The amount of security was later determined by the court as the parties could not agree on the sum.
The case concluded with the Plaintiff accepting that there was no reason for the proceedings to continue when the orders were proposed. This led to a consent to the dismissal of the proceedings. Consequently, the Defendant obtained an order no less favourable than the offer of compromise made approximately four months prior to the hearing of the notice of motion for security for costs. The court declined to exercise its discretion to order otherwise under the Uniform Civil Procedure Rules, finding that the overall justice of the case did not warrant such a departure. The final orders included the dismissal of the Plaintiff's claim and an order for the Plaintiff to pay the Defendant's costs of the notice of motion.