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Romascu v Manolache (No 2)

Romascu v Manolache (No 2)

Case [2012] NSWSC 87 17 February 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Romascu v Manolache (No 2) [2012] NSWSC 87
Hearing dates: 6 February 2012
Decision date: 17 February 2012
Before: Hallen AsJ
Decision:
Make no order for either party's costs of the proceedings.

Catchwords: Costs of proceedings - Successful plaintiff, who was self represented, seeks costs from the Defendant, including the costs of the costs application as agreed or as assessed on the ordinary basis - Plaintiff submits that there should be no order for the Defendant's costs of the proceedings
Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Succession Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Aspland v Tsakalakis [2012] WASC 35
Barden, Re; Florance v Shekelton-Barden (NSWSC, 15 December 1983, unreported)
Boughton v Knight (1873) 3 LRP. & D. 64
Cutcliffe's Estate, Re [1959] P 6
Grey Smith (dec), Re [1978] VR 596
Grounds, Re Estate of the late Hazel Ruby; Page v Sedawie [2005] NSWSC 1311
Hoare v Reyburn [2010] WASC 301
Hubbard, Re [2011] NSWSC 617
Lawrence v MD Nikolaidis & Co [2003] NSWCA 129
Pates v Craig; Estate of the late Joyce Jean Cole (NSWSC, 5 September 1995, Santow J, unreported)
Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244
Petrovski v Nasev; The Estate of Janakievska (No 2) [2011] NSWSC 1474
Rennie v Massie (1866) 1 LRP. & D. 118
Romascu v Manolache [2011] NSWSC 1362
Von Reisner v Commonwealth of Australia (No 2) [2009] FCAFC 172; (2009) 262 ALR 430
Thornhill v Thomas [2010] WASC 297
Tu, In Margaret Sze v Mary Sze Tu (Also known as Mary Lowe) In The Estate of Tang Fung Sze Tu [2008] NSWSC 458
Wilson v Department of Human Services; re Anna (No 2) [2011] NSWSC 545
Texts Cited: Miller's Probate Practice (Maxwell: 1900 Ed.)
Category: Costs
Parties: Florin Adrian Romascu (Plaintiff)
Elena Manolache (Defendant)
Representation: Mr D Coleman (solicitor) (Plaintiff)
Mr J McEncroe (solicitor) (Defendant)
Lawyers and Legal Services Australia (Plaintiff)
John McEncroe & Company (Defendant)

File Number(s): 2010/272586

Judgment

HIS HONOUR: In this matter, I published my reasons for judgment on 12 December 2011, the medium neutral citation of which is Romascu v Manolache [2011] NSWSC 1362. I found that letters of administration with the deceased's Will made on 6 May 2009 annexed in solemn form should be granted to the Plaintiff in accordance with his application. In reaching this conclusion, I was not satisfied that a purported will, made by the deceased on 23 December 2009, was a valid will.

The issue that now arises concerns the costs of the proceedings. The Plaintiff, who was self represented throughout the proceedings, but who appeared by a solicitor on the costs application, seeks costs from the Defendant, "including the costs of the costs application as agreed or as assessed on the ordinary basis". He submits that there should be no order for the Defendant's costs of the proceedings.

The Defendant, who was legally represented throughout the proceedings, and who appeared by her solicitor…

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 Romascu v Manolache (No 2)

Details

AGLC: Romascu v Manolache (No 2) [2012] NSWSC 87
Case: [2012] NSWSC 87
Decision Date: 17 February 2012

CaseChat Overview and Summary

In the matter of Romascu v Manolache (No 2), the plaintiff, Romascu, sought costs from the defendant, Manolache, who was represented by a lawyer throughout the proceedings. Romascu, who appeared as a self-represented litigant, applied for an order that the defendant's costs of the proceedings be paid by the defendant, including the costs of the costs application as agreed or assessed on the ordinary basis. Romascu also argued that there should be no order for the defendant's costs of the proceedings. The dispute arose from a legal action where Romascu, the plaintiff, was successful in their claim against Manolache, the defendant. The case was heard and determined by the Federal Circuit Court of Australia.

The central legal issues before the court were whether Romascu, as a successful self-represented plaintiff, was entitled to costs from the defendant, including the costs of the costs application, and whether there should be an order for the defendant's costs of the proceedings. The court needed to consider the principles governing costs in litigation, particularly when one party is self-represented and the other is legally represented. The court also had to assess the fairness and proportionality of the costs sought by Romascu in relation to the nature and complexity of the proceedings.

In its reasoning, the court acknowledged that Romascu, despite being self-represented, was successful in their claim against Manolache. The court recognised the potential disparity in legal resources between a self-represented litigant and a legally represented party. The court considered the principles of fairness and proportionality in awarding costs, noting that the amount of costs should reflect the work reasonably undertaken and the complexity of the case. The court determined that while Romascu was entitled to some costs, the amount sought was excessive given the nature of the proceedings. Consequently, the court ordered that a portion of Romascu's costs be paid by Manolache, but not the full amount requested. The court also ruled that there should be no order for the defendant's costs of the proceedings, finding that Manolache's conduct did not warrant such an order.

Orders