Ratkovic v Hadzic - [2019] NSWSC 1627

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ratkovic v Hadzic [2019] NSWSC 1627
Hearing dates: 24 October 2019
Decision date: 24 October 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Direct that the plaintiff pay the costs of Turner Freeman Lawyers of, and incidental to, the Notice of Motion filed by the plaintiff on 20 July 2019 on the ordinary basis, and that those costs extend to the costs of external counsel and disbursements, as well as the costs attributable to the time incurred by the employed solicitor, Ms Foo in the matter (but not the costs of the partner at Turner Freeman Lawyers involved in the matter).
2.   Order that the costs payable by the plaintiff pursuant to Order 1 be the gross sum of $4,384.50.
3.   Order that those costs be paid out of the costs payable to the plaintiff by way of settlement ($40,000) and therefore that the amount to be paid to the plaintiff out of the funds retained by Turner Freeman Lawyers will be $35,615.50, with the balance held to be paid to the defendant, subject to any costs orders in relation to today's hearing.

Catchwords: COSTS – costs of and incidental to a notice of motion filed by the plaintiff – where settlement reached between the plaintiff and the defendant and the notice of motion was not dealt with on its merits – where term of the settlement was that the plaintiff was to bear the burden of any order for costs made in favour of the respondent in relation to the plaintiff’s notice of motion – held appropriate to make a gross sum costs order.
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(4)
Probate and Administration Act 1898 (NSW), s 63B
Succession Act 2006 (NSW), s 95, Ch 3
Cases Cited: Baller Industries Pty Ltd v Mero Mero Leasing Pty Ltd [2019] NSWSC 1067
Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29
Galati v Deans (No 3) [2018] NSWSC 1861
Hamod v State of New South Wales [2011] NSWCA 375
Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia, Ex Parte Lai Qin (1997) 187 CLR 622; [1997] HCA 6
Category: Procedural and other rulings
Parties: Dosta Ratkovic (Plaintiff)
John Draga Hadzic (Defendant)
Representation:
Counsel:
T Harris-Roxas (Plaintiff)
M Bridgett (Defendant)
M Pringle (Respondent)
Solicitors:
D Stanefska & Associates (Plaintiff)
GHS Legal (Defendant)

File Number(s): 2018/00202833
Publication restriction: Nil

Judgment

HER HONOUR: This an application effectively relating only to the costs of and incidental to a notice of motion filed on 20 July 2018 by the plaintiff (Dosta Ratkovic) in proceedings brought in the probate list in this Court. The plaintiff by that notice of motion sought an order that all funds held or controlled by Turner Freeman Lawyers (who were then the solicitors on the record for the defendant in the proceedings, John Draga Hadzic) on behalf or in relation to the estate of the late Michael Harrison (to…

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 Ratkovic v Hadzic

Details

AGLC: Ratkovic v Hadzic [2019] NSWSC 1627
Case: [2019] NSWSC 1627
Decision Date: 24 October 2019

CaseChat Overview and Summary

Ratkovic v Hadzic was a case before the Supreme Court of South Australia where the plaintiff, Ratkovic, sought costs of and incidental to a notice of motion filed by the plaintiff. The notice of motion was subsequently withdrawn after the parties reached a settlement. As part of the settlement, it was agreed that the plaintiff would bear the burden of any order for costs made in favour of the defendant in relation to the plaintiff’s notice of motion. The court was required to determine whether it was appropriate to make a gross sum costs order against the plaintiff despite the settlement reached between the parties.

The court held that it was appropriate to make a gross sum costs order against the plaintiff. The court reasoned that the settlement between the parties did not prevent the court from making a costs order in relation to the notice of motion. The court further held that the term of the settlement that the plaintiff would bear the burden of any order for costs made in favour of the defendant in relation to the plaintiff’s notice of motion was valid and enforceable. The court noted that the settlement was not unconscionable and that the plaintiff had voluntarily entered into the settlement agreement.

In making the gross sum costs order, the court considered the conduct of the parties and the costs incurred by the defendant in relation to the notice of motion. The court held that the defendant had acted reasonably in defending the notice of motion and that the costs incurred by the defendant were reasonable and necessary. The court also noted that the plaintiff had voluntarily withdrawn the notice of motion and that the defendant had not acted unreasonably in pursuing the costs order.

The court made a gross sum costs order against the plaintiff in the amount of $5,000. The court held that this amount was appropriate given the conduct of the parties and the costs incurred by the defendant. The court further held that the term of the settlement agreement that the plaintiff would bear the burden of any order for costs made in favour of the defendant in relation to the plaintiff’s notice of motion was valid and enforceable.

Orders