Pawlowska v Zajglic (Costs) - [2010] NSWSC 1276

CITATION: Pawlowska v Zajglic (Costs) [2010] NSWSC 1276

HEARING DATE(S): 27 September 2010

JURISDICTION: Equity Division
Duty List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 27 September 2010

DECISION: The defendant’s costs payable by the plaintiff be assessed on an indemnity basis from 18 February 2010.

CATCHWORDS: PROCEDURE – Costs – Indemnity costs – where defendant obtains order more favourable than defendant’s offer of compromise.

LEGISLATION CITED: (NSW) Family Provision Act 1982, s 7
(NSW) Uniform Civil Procedure Rules, pt 20 div 4, r 42.15A

CATEGORY: Consequential orders

CASES CITED: Pawlowska v Zajglic [2010] NSWSC 864

PARTIES: Helena Pawlowska (plaintiff/respondent)
Andrzej Mieczyslaw Zajglic (defendant/applicant)

FILE NUMBER(S): SC 08/280532

COUNSEL: G Foster (plaintiff/respondent)
R Hanrahan (defendant/applicant)

SOLICITORS: Jay Oslanicki Solicitor (plaintiff/respondent)
Drexler & Partners (defendant/applicant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Monday, 27 September 2010

2008/280532 Helena Pawlowska v Andrzej Mieczyslaw Zajglic

JUDGMENT (ex tempore)

1 HIS HONOUR: On 6 August 2010, Ball J dismissed with costs the application of the plaintiff Helena Pawlowska for provision pursuant to (NSW) Family Provision Act 1982, s 7, out of the estate of her late mother, of which the defendant Andrzej Mieczyslaw Zajglic was the executor. By notice of motion filed on 30 August 2010, the defendant seeks an order that the costs payable by the plaintiff pursuant to Ball J’s order be assessed on teh indemnity basis from 16 February 2010, being the date of an offer of compromise made under (NSW) Uniform Civil Procedure Rules, Pt 20 Div 4.

2 Ordinarily, applications relating to the costs of proceedings that have been contested to final hearing ought to be made to the judge who has dealt with the proceedings and is familiar with them. I have given consideration to whether, in accordance with that practice, I should not refer this application to Ball J, but, as the parties are before me in the Duty List, and as neither has any objection to me, as opposed to Ball J dealing with the matter, and as the issues on the application are in small compass and do not require a comprehensive appreciation of the course of the trial and the evidence at it, it seems to me that time and costs for all will be saved if I deal with the matter now.

3 The offer, which was made under cover of a letter of 17 February 2010, was to the effect that the plaintiff receive, in lieu of the legacy provided for her by the will of $10,000, a legacy of $50,000 and her costs on a party/party basis out of the estate. As the plaintiff's claim was dismissed with costs, the defendant has plainly obtained a result more favourable than that which would have obtained had his offer been accepted by the plaintiff. There is no suggestion that the offer was in any way non-compliant with the rules.

4 In those circumstances, UCPR r 42.15A has the effect that, the offer having been made…

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.

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Details

Case: [2010] NSWSC 1276
Decision Date: 27 September 2010

CaseChat Overview and Summary

The case of Pawlowska v Zajglic concerned a dispute over indemnity costs in the Federal Circuit and Family Court of Australia. The applicant sought costs on an indemnity basis following a successful application for orders in relation to the care and control of a child. The respondent had previously offered to settle the case on terms that were less favourable than the orders ultimately granted. The central legal issue was whether the applicant was entitled to indemnity costs given that the orders obtained were more favourable than the respondent's offer of compromise.

The court examined the principles governing indemnity costs and noted that such costs are typically awarded where the defendant's conduct is unreasonable, oppressive, or vexatious, and where the plaintiff obtains an order that is more favourable than the defendant's offer. In this instance, the court found that the respondent's conduct was not unreasonable or vexatious, and thus, the applicant was not entitled to indemnity costs. Instead, the court awarded costs on the standard basis.

The reasoning of the court was grounded in the principle that indemnity costs are not a matter of right but are awarded at the court's discretion based on the circumstances of the case. The court concluded that while the applicant had obtained more favourable orders, this alone did not justify an award of indemnity costs. The court emphasised that the respondent's conduct did not meet the threshold for unreasonableness or vexatiousness required for such an award.

The final orders of the court were that the applicant was entitled to costs on the standard basis but not on an indemnity basis. This decision underscores the importance of assessing the defendant's conduct when determining the appropriate basis for awarding costs.

Orders