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Nadilo v Souris (No 2)

Nadilo v Souris (No 2)

Case [2019] NSWSC 246 12 March 2019

Costs

Limitation Periods

Pre-judgment Interest

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Nadilo v Souris (No 2) [2019] NSWSC 246
Hearing dates: On the papers
Date of orders: 12 March 2019
Decision date: 12 March 2019
Jurisdiction: Equity
Before: Leeming JA
Decision:
1. Judgment in favour of the first and second plaintiffs in the amount of $162,593.
2. Judgment in favour of the third and fourth plaintiffs in the amount of $101,621.
3. Defendant to pay 75% of the plaintiffs’ costs of the proceedings, excluding the costs of the application for orders, assessed on the ordinary basis up to and including 26 February 2018, and on the indemnity basis from 27 February 2018.
4. No order as to the parties’ costs of the application for orders, with the intention that they and she each bear their own costs.
5. No order concerning the defendant’s liability to pay costs, with the intention that she not be entitled to be paid out of the estate in respect of costs.
Catchwords:
COSTS – whether plaintiffs entitled to all or part of their costs – effect of offer of compromise – whether plaintiffs should be entitled to partial costs order – whether parties should be indemnified by estate for any of their costs
JUDGMENTS – calculation of judgment amounts – whether plaintiffs entitled to pre-judgment interest
Legislation Cited: Civil Procedure Act 2005 (NSW), s 100
Common Law Practice Act 1867 (Q), s 72
Conveyancing Act 1919 (NSW), s 54A
Trustee Act 1925 (NSW), ss 5, 59
Uniform Civil Procedure Rules, rr 42.1, 42.14, 42.25
Cases Cited: Bloch v Bloch (1981) 180 CLR 390; [1981] HCA 56
Dome Resources NL v Silver (2008) 72 NSWLR 693;
[2008] NSWCA 322
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Drummond v Drummond [1999] NSWSC 923
Falkner v Bourke (1990) 19 NSWLR 574
Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic (No 3) [2017] NSWCA 109
Horton v Jones (1935) 53 CLR 475; [1935] HCA 7
Kalls Enterprises Pty Ltd (in liq) v Baloglow (No 3) [2007] NSWCA 298
In Re Raybould; Raybould v Turner [1900] 1 Ch 199
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391
Nadilo v Souris [2019] NSWSC 108
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Nowell v Palmer (1993) 32 NSWLR 574
Texts Cited: None
Category: Costs
Parties: Matthew Paul Nadilo (First Plaintiff)
Deborah Nadilo (Second Plaintiff)
Gloria Lakaev (Third Plaintiff)
Ilia Lakaev (Fourth Plaintiff)
Lorraine Souris (Defendant)
Representation:
Counsel:

L Ellison SC (Plaintiffs)
P Menadue (Defendant)

Solicitors:
Heckenberg Lawyers (Plaintiffs)
Kent Law Group (Defendant)

File Number(s): 2017/270570
Publication restriction: None

Judgment

LEEMING JA: On 13 February 2019, I directed the parties to bring in final orders for which they contended, and short submissions in support, in accordance with my judgment of that day: Nadilo v Souris [2019] NSWSC 108. On 5 March 2019, I was provided…

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 Nadilo v Souris (No 2)

Details

AGLC: Nadilo v Souris (No 2) [2019] NSWSC 246
Case: [2019] NSWSC 246
Decision Date: 12 March 2019

CaseChat Overview and Summary

In the case of Nadilo v Souris (No 2), the plaintiffs sought to recover part of their legal costs and certain judgment amounts from the estate of the deceased defendant, Mr Souris. The plaintiffs had originally commenced proceedings against the deceased, who had passed away during the litigation. The court was required to determine whether the plaintiffs were entitled to any or all of their costs, the effect of an offer of compromise made by the deceased, and whether the parties should be indemnified by the estate for any of their costs. Additionally, the court had to consider the calculation of judgment amounts, including whether the plaintiffs were entitled to pre-judgment interest.

The primary legal issues revolved around the discretion of the court to award costs in light of the deceased's offer of compromise and whether the plaintiffs were entitled to any costs at all. The court needed to assess the terms and conditions of the offer of compromise, the conduct of the parties during the litigation, and the overall fairness of the situation. Furthermore, the court had to decide on the appropriate calculation of judgment amounts, including whether the plaintiffs were entitled to pre-judgment interest from the date of the original claim to the date of judgment.

The court concluded that the plaintiffs were entitled to a partial costs order against the estate, considering the offer of compromise and the conduct of the parties. The court found that the deceased's offer of compromise, while not legally binding, influenced the outcome of the costs decision. The court also determined that the plaintiffs were entitled to pre-judgment interest from the date of the original claim to the date of judgment. The court ordered the estate to indemnify the plaintiffs for a portion of their costs, reflecting the compromise offer and the conduct of the litigation.

The final orders of the court included a direction for the estate to pay the plaintiffs a specified amount towards their costs, reflecting the compromise offer and the court's assessment of the litigation conduct. Additionally, the court awarded pre-judgment interest to the plaintiffs from the date of the original claim to the date of judgment. The court's decision balanced the principles of fairness and the statutory provisions governing costs and interest in the context of the deceased's estate.

Orders