Pizimolas v Pizimolas (No 2)

[2010] SASC 209

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

PIZIMOLAS v PIZIMOLAS & ZANNIS (NO 2)

[2010] SASC 209

Judgment of The Honourable Justice Kourakis

14 July 2010

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OUT OF A FUND - WHEN COSTS ALLOWED OUT OF FUND

Following trial in which plaintiff claimed entitlement to whole of deceased estate, judgment delivered dismissing plaintiff’s claims for a constructive trust and family provision and allowing defendants’ counterclaim for mesne profits – defendants applied for costs – plaintiff argued that costs should come out of the estate.

Held: Defendants in their capacity as executors to have costs paid on indemnity basis from the estate – defendants to have solicitor’s costs on party/party basis and lump sum of $800 for counsel fees on the counterclaim – plaintiff to pay defendants 15 per cent of defendants’ total costs of litigation on party/party basis for constructive trust claim – defendants to have costs of defending family provision claim paid out of estate on party/party basis.

Evidence Act 1929 s 67C, referred to.
Public Trustee v Hall [1937] SASR 252, applied.
Bowyer v Woods [2007] SASC 327, discussed.
R v Seigneur (2009) 103 SASR 207; Chapman v Allan and Draper (1999) 74 SASR 274; Rayner v Pethick [2006] SASC 70, considered.

PIZIMOLAS v PIZIMOLAS & ZANNIS (NO 2)
[2010] SASC 209

Civil: Application

1. KOURAKIS J:      On 28 May 2010 I delivered judgment in this matter.[1]  The plaintiff and the defendants are siblings.  I dismissed the plaintiff’s claim that he held his mother’s residence, which was the substantial asset of her estate, on a constructive trust.  I also dismissed his claim for greater provision out of the estate than the equal shares which were left to him and his two siblings.  I allowed the defendants’ counterclaim for mesne rent for a period in which the plaintiff remained in occupation of his mother’s residence after he had been given notice to quit.

   [1]    Pizimolas v Pizimolas & Zannis [2010] SASC 158.

2. The defendants, in their capacity as beneficiaries under the will, seek an order that the plaintiff pay their costs of defending his claim and in prosecuting their claim for mesne profit.  The plaintiff contends that no order for costs should be made against him and seeks an order that his costs be paid out of the estate.  It is common ground that the defendants, in their capacity as executors, should have their costs paid on an indemnity basis from the estate; I so order.

3. I shall first deal with the question of costs on the defendants’ mesne profit claim.  There is no basis upon which the ordinary rule that costs follow the event can be displaced.  I order that the defendants have their solicitor’s costs on the counterclaim, to be taxed on a party/party basis.  I shall fix a lump sum for counsel fees on that claim because of the difficulty in disentangling the counsel fees incurred on the…