Legal Research
Cases
Re Ciantar (No 2)

Re Ciantar (No 2)

Case [2022] VSC 267 27 May 2022

Costs

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2020 33195

IN THE MATTER of the estate of CARMEL MARY CIANTAR, deceased

BETWEEN:

ANTHONY JOSEPH CIANTAR	Plaintiff
v
AIMEE LAUREN CIANTAR	Defendant

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	27 May 2022
CASE MAY BE CITED AS:	Re Ciantar (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 267

---

COSTS – Where defendant successful – Whether parties should bear their own costs – Whether Court should depart from principle that costs follow the event – No conduct found to displace ordinary principle that costs follow the event – Plaintiff to bear costs of both parties – Supreme Court Act 1986 (Vic) s 24 – Supreme Court (General Civil Procedure) Rules 2015 ord 63 – Oshlack v Richmond River Council (1998) 193 CLR 72.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Rizzi	KHQ Lawyers
For the Defendant	Mr DW Laidlaw	Stenta Legal

HER HONOUR:

Introduction

On 9 March 2022, the Court delivered reasons and made orders dismissing an application made by the plaintiff on 15 December 2020 for appointment as administrator ad litem of the deceased’s estate.[1]
[1]Re Ciantar [2022] VSC 116.

The plaintiff has filed an appeal in respect of the judgment. As the parties have been unable to reach agreement on costs, or regarding a stay of costs pending the outcome of the appeal, it is necessary for the Court to provide short reasons on costs in relation to the proceeding.

Both parties filed submissions on costs, pursuant to orders made by this Court on 9 March 2022. The plaintiff submitted that the parties should bear their own costs, whereas the defendant submitted that costs should follow the event. Neither party refers to costs being indemnified by the estate, presumably because there are no funds in the estate with which to satisfy such an order.

Relevant background
Plaintiff’s application in the substantive proceeding

The plaintiff is the son and only child of the deceased, Carmel Mary Ciantar, who died on 24 June 2019. The defendant is his daughter, and the deceased’s granddaughter. There are two other grandchildren.

The plaintiff was unsuccessful in his application for a limited appointment as administrator ad litem of the deceased’s estate. If successful, he had intended to pursue an investigation into the inter vivos transfer of the deceased’s home at 117 Harold Street, Middle Park (‘Middle Park property’) to the defendant and, if necessary, have the transfer set aside, so that the property could be included as an asset in the estate.

The inter vivos transfer of the deceased’s home resulted in the property being listed in the joint names of the deceased and the defendant. In September 2015, the deceased and the defendant were registered as joint proprietors of the property, although the plaintiff submitted that the transfer took place with no consideration and the transfer of land…

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 Re Ciantar (No 2)

Details

AGLC: Re Ciantar (No 2) [2022] VSC 267
Case: [2022] VSC 267
Decision Date: 27 May 2022

CaseChat Overview and Summary

The case of Re Ciantar (No 2) involved a dispute between two parties, with the matter being heard in the Supreme Court of Victoria. The plaintiff sought an order for costs, arguing that the defendant should bear the costs of both parties due to the nature of the proceedings. The legal issues before the court were whether the parties should bear their own costs, and if the court should depart from the established principle that costs follow the event.

The court considered the principle that costs generally follow the event, meaning that the unsuccessful party is typically ordered to pay the costs of the successful party. However, the court also recognised that there are circumstances in which it may be appropriate to depart from this principle. In this case, the court found no conduct on the part of either party that would justify such a departure. The court referred to the provisions of the Supreme Court Act 1986 (Vic) and the Supreme Court (General Civil Procedure) Rules 2015, as well as the decision in Oshlack v Richmond River Council, to guide its determination.

Ultimately, the court determined that the plaintiff should bear the costs of both parties. The court found that the ordinary principle that costs follow the event should not be displaced in this case, as there was no conduct by either party that warranted a departure from this principle. The court made an order in accordance with the Supreme Court Act and the relevant rules, directing that the plaintiff bear the costs of both parties.

Orders