Mitar v Mitar (No 2) - [2017] NSWSC 1308

Supreme Court

New South Wales

Medium Neutral Citation: Mitar v Mitar (No 2) [2017] NSWSC 1308
Hearing dates: 20 September 2017
Date of orders: 27 September 2017
Decision date: 27 September 2017
Jurisdiction: Equity
Before: Robb J
Decision:
The plaintiff’s costs of the proceedings are to be paid out of the estate of the deceased on the ordinary basis and the defendants costs are to be paid out of the estate of the deceased on an indemnity basis.

Catchwords: COSTS — Party/party — Indemnity costs — Whether plaintiff should be ordered to pay defendant’s costs on an indemnity basis — Where defendant made an offer of compromise to the plaintiff — Where plaintiff obtained a result more favourable than the offer.
Legislation Cited: Uniform Civil Procedure Rules (NSW) r 20.26.
Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586
Cunningham v Guardian Royal Financial Services Pty Ltd [2017] NSWSC 1057
Mitar v Mitar [2017] NSWSC 647
Oxlade v Gosbridge Pty Ltd (No 2) [1999] NSWCA 165
Treloar Constructions Pty Ltd (No 2) [2017] NSWCA 146
Walker v Harwood [2017] NSWCA 228
Walsh v Walsh (No 2) [2013] NSWSC 1281
Whitney v Dream Development Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188
Category: Costs
Parties: Ante Mitar (plaintiff)
Maria Mitar (defendant)
Representation:
Counsel: Dr J Lucy (plaintiff)
Dr H Bennett (defendant)
Solicitors: Berala Law Group (plaintiff)
Glass Goodwin Solicitors (defendant)

File Number(s): 2015/269034

Judgment

I delivered reasons for judgment in this matter on 26 May 2017 following a hearing that took place between 4 and 7 April 2017: see Mitar v Mitar [2017] NSWSC 647.
As was the case with the principal judgment, with no disrespect intended, I will refer to the parties by their first names.
The proceedings concerned an application by Ante for a family provision order under s 79 of the Succession Act (NSW). The order I proposed was that Ante should be granted a family provision order in an amount of 30% of the value of the estate of the deceased (where that value was to be determined in accordance with the reasons for judgment): see [346]. I decided that the amount that Ante, and the other children of the deceased, should receive out of the estate would depend upon the net amount received from the sale of the property, that was referred to as 1 Harry Avenue in the judgment, plus the cash held by the executor, or already distributed.
As I recorded at [82], the parties had accepted for the purposes of the argument that 1 Harry Avenue had a value estimated at $1,850,000. As a practical matter it was necessary that 1 Harry Avenue be sold so that the estate could be divided between the children of the deceased. The sale price may be more or less than the estimated $1,850,000, although it is notorious in the Sydney property market that properties regularly sell for greater prices than are expected.
At [346] I calculated that Ante…

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 Mitar v Mitar (No 2)

Details

AGLC: Mitar v Mitar (No 2) [2017] NSWSC 1308
Case: [2017] NSWSC 1308
Decision Date: 27 September 2017

CaseChat Overview and Summary

In the case of Mitar v Mitar (No 2), the parties involved were the plaintiff and the defendant. The nature of the dispute pertained to the costs associated with the litigation. The matter was brought before the court to decide whether the plaintiff should be ordered to pay the defendant's costs on an indemnity basis. This decision was necessary following the defendant's offer of compromise to the plaintiff, which was ultimately surpassed by the outcome of the case.

The primary legal issue the court was required to address was whether the plaintiff should be obligated to cover the defendant's costs on an indemnity basis. This consideration arose from the defendant's proposal to settle the dispute, and the subsequent result that was more favourable to the plaintiff than the offer. The court needed to assess the appropriate circumstances under which such an order could be made, particularly in light of the defendant's attempt to resolve the matter through compromise.

The court deliberated on the relevant principles governing indemnity costs and the precedent set by similar cases. Ultimately, the court concluded that the plaintiff should be ordered to pay the defendant's costs on an indemnity basis. This decision was grounded in the fact that the plaintiff's outcome was more favourable than the defendant's offer of compromise. The court found that the defendant's attempt to resolve the matter through compromise did not absolve the plaintiff from the responsibility of covering the defendant's costs under the specified conditions. The court's reasoning reflected a careful consideration of the procedural fairness and the established legal framework for assessing indemnity costs in such contexts.

The final orders of the court mandated that the plaintiff pay the defendant's costs on an indemnity basis. This ruling was consistent with the court's analysis of the legal principles and the facts of the case, affirming the appropriateness of the defendant's recovery of costs under the circumstances.

Orders