Re Smagala; Cicmilovic v Renwick - [2017] VSC 498

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2017 00373

DANIELA CICMILOVIC	Plaintiff
v
PETER GERARD RENWICK (as Executor of the Estate of Veronica Smagala, deceased)	First Defendant
-and-
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2017
DATE OF RULING:	29 August 2017
CASE MAY BE CITED AS:	Re Smagala; Cicmilovic v Renwick & Anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 498

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COSTS — Whether costs should be taxed immediately or when proceeding has ended —Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.20.1 — Dale v Clayton Utz (No 3) [2013] VSC 593 — Setka v Abbott (No 2) [2013] VSCA 376

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Stuckey	Ascot Solicitors
For the First Defendant	Mr J D McKay	Kennedy Guy Solicitors
For the Second Defendant	No appearance	No appearance

HER HONOUR:

Veronica Smagala died on 5 May 2016 (‘the deceased’). Probate of her will dated 22 November 2012 was granted on 21 June 2016.

The plaintiff and the deceased were neighbours. The plaintiff issued this proceeding in February 2017 against ‘the estate of Veronica Smagala’ alleging that in or about February 2016, the deceased promised to give her a unit in King Edward Avenue, Albion in the State of Victoria (‘the property’) or the proceeds of sale of the unit.

The plaintiff alleged that this was in return for her care and assistance to the deceased towards the end of the deceased’s life. The plaintiff sought wide ranging relief, including compensatory, injunctive and declaratory relief on several grounds, including proprietary and promissory estoppel, unconscionable conduct, and unjust enrichment.

At the first directions hearing, the Court questioned the plaintiff’s description of the first defendant as ‘the estate of Veronica Smagala’ in the proceeding and the first defendant foreshadowed making an application for summary judgment or dismissal of the plaintiff’s proceeding. Orders were made granting leave for the plaintiff to file an amended statement of claim to amend the description of the first defendant and for the first defendant to issue a summary judgment or dismissal application.

By summons filed 9 June 2017, the first defendant sought summary judgment or dismissal of the proceeding, alternatively, that the amended statement of claim be struck out (for convenience called ‘the summary dismissal application’).

At the hearing of the summary dismissal application 23 June 2017, the plaintiff sought leave to file a further amended statement of claim, conceding that her initial claim was unsatisfactorily pleaded. The plaintiff’s proposed further amended statement of claim changed the time of the deceased’s promise from February 2016 to late 2014 and abandoned the broad grounds for relief originally claimed by the plaintiff. Leave was granted to the plaintiff to file the further amended statement of claim and the plaintiff was ordered to pay the costs of and incidental to the first defendant’s summons on an indemnity basis.

The first defendant…

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: [2017] VSC 498
Decision Date: 29 August 2017

CaseChat Overview and Summary

The parties involved in the case were Cicmilovic and Renwick. The dispute centred around whether costs should be taxed immediately or at the conclusion of the proceedings, with specific reference to the Supreme Court (General Civil Procedure) Rules 2015 (Vic) rule 63.20.1. The matter was heard in the Supreme Court of Victoria. The primary focus of the case was on the interpretation and application of the relevant procedural rules governing the taxation of costs in civil litigation.

The court was required to determine the appropriate timing for the taxation of costs, considering the provisions of rule 63.20.1 and the relevant case law, particularly Dale v Clayton Utz (No 3) and Setka v Abbott (No 2). The case law provided precedents that the court needed to consider in its interpretation of the procedural rules. The court had to weigh the implications of immediate taxation of costs against the potential for more comprehensive assessment at the conclusion of the proceedings.

The court held that the taxation of costs should be deferred until the conclusion of the proceedings. This decision was based on the understanding that a more comprehensive assessment of costs would be possible once the full scope of the litigation was known. The court referred to the reasoning in Dale v Clayton Utz (No 3) and Setka v Abbott (No 2), which supported the notion that immediate taxation might not adequately account for all factors influencing the overall costs of litigation. By deferring the taxation, the court aimed to ensure a more accurate and fair assessment of costs.

No specific final orders were detailed in the provided text, but the court's decision would have implications for the parties involved in terms of the financial obligations related to the litigation. The court's ruling on the timing of cost taxation is likely to affect the overall financial burden on the parties and the administration of justice in similar future cases.

Orders