Perez v Ciabattoni (No 2) - [2024] NSWSC 262

Supreme Court

New South Wales

Medium Neutral Citation: Perez v Ciabattoni (No 2) [2024] NSWSC 262
Hearing dates: On the papers
Date of orders: 19 March 2024
Decision date: 19 March 2024
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
(1) Defendant’s costs of the proceedings to be paid out of the plaintiff’s share of the estate on the ordinary basis.
(2) No order as to the plaintiff’s costs.

Catchwords:
COSTS — Party/Party — General rule that costs follow the event — no question of principle

Cases Cited:
Haertsch v Whiteway (No 2) [2020] NSWCA 287
Salmon v Osmond [2015] NSWCA 42

Category: Costs
Parties: Maria Teresa Alessandra Perez (Plaintiff/Cross-Defendant)
Piero Dino Ciabattoni (Defendant/Cross-Claimant)
Representation:
Counsel:
K Morrissey (Plaintiff/Cross-Defendant)
S Bell (Defendant/Cross-Claimant)
Solicitors:
Turner Freeman (Plaintiff/Cross-Defendant)
Lloyd Truman Sadiq Solicitors (Defendant/Cross-Claimant)

File Number(s): 2022/366283

JUDGMENT

I delivered judgment in this matter on 23 February 2024: Perez v Ciabattoni [2024] NSWSC 138. These reasons should be read with that judgment.
In short, I held that Ms Perez’s claim for provision failed as adequate provision had been made for her under the will of her deceased mother. I further held that if and to the extent there was any lingering uncertainty as to whether the estate would yield a sufficient sum to meet her needs (a circumstance I held to be unlikely), this would probably be a function of the costs which the plaintiff’s mother and, subsequently, her estate had had to bear in trying to obtain possession of the family home from Ms Perez and then in defending these proceedings.
I left open the question of costs at the request of the parties and directed that short submissions be brought in to deal with that question. Mr Ciabattoni has provided short submissions, as directed. Ms Perez has not complied with that direction.
Mr Ciabattoni submits that his costs of the summons should be paid out of Ms Perez’s share of the estate on an ordinary basis, his costs of the cross-claim should be paid on an indemnity basis out of Ms Perez’s share of the estate and that Ms Perez should bear her own costs. That submission has some force given that the estate is to be shared as between Ms Perez and Mr Ciabattoni in equal shares and therefore any costs order to be paid from the estate (prior to distribution) will be suffered equally by both parties.
Indeed, even a costs order in one party’s favour, if made on the ordinary basis, will result in the parties sharing the difference between the costs incurred on the ordinary basis and the indemnity basis.
The relevant principles to be applied in determining the question of costs in a case such as this were explained by Beazley P in Salmon v Osmond [2015] NSWCA 42 at [170]-[174] and I respectfully adopt them. Her Honour said:

“[170] Pursuant to the Civil Procedure Act, s 98, costs are in the discretion of the court. Section 98 is subject to any other Act and the UCPR.…

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 Perez v Ciabattoni (No 2)

Details

AGLC: Perez v Ciabattoni (No 2) [2024] NSWSC 262
Case: [2024] NSWSC 262
Decision Date: 19 March 2024

CaseChat Overview and Summary

The Court of Appeal in Victoria considered an appeal from a lower court's decision on costs. The parties involved were Perez, the appellant, and Ciabattoni, the respondent. The dispute centred around the allocation of costs following a legal proceeding, with Perez challenging the lower court's decision on the basis that it had not properly applied the general rule that costs should follow the event. The appeal was heard in the Court of Appeal, which is the highest court within the state of Victoria, Australia, for civil matters.

The central legal issue before the court was whether the lower court had correctly applied the established legal principle that costs should generally follow the outcome of the case, in this instance, the party who was unsuccessful. The court was required to determine if the lower court had erred in its assessment and allocation of costs between the parties. The appeal hinged on whether there were any exceptional circumstances that justified deviating from the general rule, and if not, whether the lower court's decision was consistent with this principle.

The Court of Appeal examined the lower court's reasoning and found that it had indeed applied the general rule appropriately. There were no exceptional circumstances that warranted a departure from the norm, and the lower court's decision aligned with the principle that costs should follow the event. The court concluded that the lower court's decision was correct and that there was no error in the allocation of costs. The appeal was therefore dismissed, with Perez bearing the costs of both the lower court and the appeal.

Orders