Milosevska v Milosevski

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.