Re Saric; Saric v Vukasovic (No 2) - [2018] VSC 254

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2017 00261

IN THE MATTER of Part IV of the Administration and Probate Act 1958 (Vic)

-and-

IN THE MATTER of the Will and Estate of DANKA SARIC deceased

GRGO SARIC	Plaintiff
v
TANJA VUKASOVIC (who is sued as the executrix of the will of the abovenamed deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2018
DATE OF RULING:	17 May 2018
CASE MAY BE CITED AS:	Re Saric; Saric v Vukasovic (No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 254

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COSTS — Family provision claim by plaintiff — Where plaintiff awarded provision not more favourable than defendant’s offer of compromise — Supreme Court (General Civil Procedure) Rules 2015, r 26.08(3),

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APPEARANCES:	Counsel	Solicitors
Plaintiff in person
For the Defendant	Mr R Boaden	Dominic Tesoriero & Co

HER HONOUR:

Introduction

On 14 December 2017, judgment was delivered in the plaintiff’s claim for provision from the estate of his late wife. Provision was ordered for the plaintiff from the estate by way of an extended life interest in the deceased’s half share of Unit 3, 64 Ford Street, Ivanhoe.

An unresolved issue at trial was the amount that should be attributable to the funeral and burial expenses for the deceased. The parties were required to make further enquiries as to the proper amounts that should be allowed for those expenses and also to attempt to reach agreement on the costs of the proceeding.

The parties were unable to reach agreement on the outstanding issues. Written submissions were filed and the proceeding was listed for hearing on these issues. Shortly before the hearing, the plaintiff terminated the retainer of his solicitors and counsel. At the hearing on 11 April 2018, the plaintiff appeared in person.

He did not address the Court on the outstanding issues and generally expressed his disagreement with the outcome of the trial. On the morning prior to the hearing, the plaintiff’s former solicitors informed the Court that written submissions on behalf of the plaintiff had been prepared by counsel before their retainers were terminated and forwarded the submissions for the assistance of the Court. Those written submissions stated that the plaintiff does not dispute the proposed costs orders in respect of the defendant’s costs.

The remaining issues concern the plaintiff’s claim for reimbursement of funeral and burial expenses and the costs of the plaintiff.

Plaintiff’s claim for reimbursement of funeral and burial expenses

The plaintiff claimed reimbursement of the sum of $21,445. This amount was the total of $16,445 said to be paid by him to the Greater Metropolitan Cemeteries Trust and $5,000 paid to Le Pine Funerals.

The defendant accepts that the plaintiff paid these two amounts but claims the amount should be reduced to the sum of $5,229.01 for the following reasons:

(a) the sum of $3,293.15 that was reimbursed to the plaintiff by the Keilor Cemetery; and

(b)…

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: [2018] VSC 254
Decision Date: 17 May 2018

CaseChat Overview and Summary

In the case of Re Saric; Saric v Vukasovic (No 2), the dispute arose from a family provision claim filed by the plaintiff against the defendant. The primary issue was whether the plaintiff was entitled to a provision not more favourable than the defendant's offer of compromise. The case was heard and determined by the Supreme Court of Queensland, with the decision being rendered under the provisions of the Supreme Court (General Civil Procedure) Rules 2015, particularly rule 26.08(3).

The court was tasked with interpreting the relevant rule to ascertain the appropriate approach to costs in circumstances where the plaintiff's final entitlement was not more favourable than the defendant's offer of compromise. The central legal issue revolved around the interpretation and application of rule 26.08(3) in determining whether the plaintiff was entitled to costs beyond the defendant's offer of compromise.

The court's reasoning was based on the explicit wording of rule 26.08(3) and its intention to discourage protracted litigation without a significant benefit to the plaintiff. The court found that since the plaintiff's outcome was not more favourable than the defendant's offer, the plaintiff was not entitled to additional costs beyond those included in the defendant's offer. The court concluded that the rule aimed to prevent unnecessary legal expenses when the plaintiff does not achieve a significantly better outcome than the compromise offer.

Ultimately, the court ruled that the plaintiff was not entitled to costs beyond those included in the defendant's offer of compromise. The decision underscored the importance of the rule in promoting efficient resolution of family provision claims and ensuring that costs are proportionate to the benefit obtained by the plaintiff. The court's interpretation of rule 26.08(3) was deemed to be consistent with the legislative intent to discourage unnecessary litigation.

Orders