Rouse v Diakou
[2018] VSC 396
•23 July 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S CI 2017 01704
| MARY ROUSE | Plaintiff |
| v | |
| DIMITRIOS ‘JIMMY’ DIAKOU | Defendant |
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JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13, 26 June and 2 to 5 July 2018 |
DATE OF RULING: | 23 July 2018 |
CASE MAY BE CITED AS: | Rouse v Diakou |
MEDIUM NEUTRAL CITATION: | [2018] VSC 396 |
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COSTS – Proceeding for discovery of documents – Proceeding necessary for proper administration of estate – Where orders made granting relief – Where defendant’s compliance in issue – Where cross-examination of defendant ordered – Where no findings of fact or determinations on the merits – Principles as to costs – Scope of discretion – Departure from rule that ‘costs follow the event’ – Conduct of litigation not reasonable – Paddy v Borg (1973) VR 626; Latoudis v Casey (1990) 170 CLR 534; Re The Minister for Immigration and Ethnic Affairs (Cth); Ex Parte Lai Qin (1997) 186 CLR 622 referred to.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Gillies QC with Mr N Rosenbaum | P & B Law |
| For the Defendant | Mr I Martindale QC | Diakou Fagan Lawyers |
HER HONOUR:
This was an unusual proceeding in that the Court was asked to oversee the production of evidence, and ensure the fairness of the trial, but not make any findings of fact or determinations on the merits. The only issue for the Court to decide is therefore as to costs.
The starting point, where neither party has succeeded or failed, is that the Court should make no order as to costs. This is implicit in the general rule that ‘costs follow the event’. However, where there has been conduct which falls short of the ordinary standards that govern litigation in this jurisdiction, it may be appropriate to exercise the discretion.[1] This will necessarily involve asking whether the conduct of the parties was reasonable. As will become clear, in this proceeding, I consider that the conduct of the defendant, who is an experienced legal practitioner, has been less than reasonable.
[1]See, eg, Amcor Ltd v Barnes (No 5) [2013] VSC 51 (Vickery J).
I have concluded that the defendant should pay the plaintiff’s costs of and incidental to the proceeding on a standard basis. My reasons follow.
Procedural history
This proceeding names Mary Rouse as the plaintiff and Dimitrios ‘Jimmy’ Diakou as the defendant. It is related to proceeding S PRB 2016 21172 (‘the probate proceeding’). In that proceeding the plaintiff has been granted letters of administration ad colligendum bona in respect of the estate of Arnan Lawrence Rouse, the deceased, who was formerly her husband. The defendant was effectively the deceased’s primary solicitor and had extensive knowledge of his complex web of companies and trusts.
The purpose of the instant proceeding was to compel the production of certain documents that the plaintiff says are, or were, in the possession of the defendant and are necessary for the administration of the deceased’s estate. Rather than subpoena those documents, or seek a non-party discovery order in the probate proceeding,[2] the plaintiff decided to commence a standalone proceeding against the defendant. The probate proceeding was accordingly stayed pending the outcome of this proceeding.
[2]See O 32 of the Supreme Court (General Civil Procedure) Rules 2015.
As I have said, while not a party to the probate proceeding, the defendant is nevertheless central because of the role he played as the deceased’s solicitor for approximately 17 years.[3] Somewhat unusually, at the hearing on 16 December 2016 before McMillan J, the defendant was represented by counsel.[4] That hearing was for the purposes of determining whether there should be a limited grant of administration to Mary Rouse, the deceased’s ex-wife, who is the plaintiff in this proceeding. The transcript reveals that the Court was troubled by the fact that the defendant had tried to have himself appointed the administrator of the deceased’s estate when he had no standing to do so. Indeed, since he had not obtained the consent of any of the deceased’s children (or their mothers), he was not even in a position to advertise his intention to make an application. Yet he had published an advertisement to that effect—or someone else had published it for him[5]—in which it was said that he was the lawful guardian of the deceased’s children.
[3]Affidavit of Dimitrios Jimmy Diakou sworn 20 June 2018 [20].
[4]Transcript of Proceedings In the Matter of the Estate of Arnan Lawrence Rouse (Supreme Court of Victoria, McMillan J, 16 December 2016) 2.4–3.19. The transcript reveals that the defendant was represented by Mr P Bravender-Coyle.
[5]The defendant, when cross-examined before me, maintained that his counsel had acted without instructions in having the notice drawn up and published. He said he did not know of the notice of advertisement until after it was published. See Transcript of Proceedings Rouse v Diakou (Supreme Court of Victoria, Zammit J, 13 June 2018, 26 June 2018, 2–5 July 2018) 399.31–401.5 (‘T’).
The transcript of the 16 December 2016 hearing reveals two further issues of concern to the Court. The first was that the deceased’s various companies and trusts were effectively frozen, and had been for many months, being unable to hold company meetings, sign cheques, or do anything of that nature. It was therefore necessary to appoint an administrator—either an independent person, by consent, or else the person with the highest and best interest—so as to preserve the assets of the estate. (In the event, since the parties were not able to agree on such a person, the Court granted to the plaintiff letters of administration ad colligenda on a limited basis.) The second issue, which follows from the first, was that whomever was to be the administrator would need access to the controlling documents relating to the deceased’s companies and trust. And those documents, as I have said, were in the possession of the defendant; indeed, as he deposed at the time, he had been in ‘day-to-day contact with the banks who are the mortgagees’.[6] As this suggests, he had represented to several banks, namely the National Australia Bank and the Commonwealth Bank of Australia, that he was in a position to authorise transactions flowing from accounts formerly controlled by the deceased, representations they had accepted an acted on.
[6]Affidavit of Dimitrios Jimmy Diakou affirmed 16 December 2016 [1]. See also T443.6–448.3.
It was therefore necessary for the defendant to give undertakings to the Court that he would hand over all relevant documents to the plaintiff as limited administrator and would no longer have any dealings with the abovenamed banks. These undertakings were given in open court, via the defendant’s counsel, and their terms were recorded in the ‘Other Matters’ section of the orders made by McMillan J, also dated 16 December 2016, as follows:
The non-party, Mr Dimitrios Jimmy Diakou, the deceased’s former solicitor, undertakes to deliver up to the plaintiff or her solicitors all documents relating to the deceased’s estate and any trust and companies in which the deceased held an interest (‘the deceased’s documents’) by his counsel.
…
Mr Diakou undertakes not to have any further dealings with any banks who are mortgagees of the deceased or companies or trusts in which the deceased had an interest, including the National Australia Bank and the Commonwealth Bank or [sic] Australia by his counsel.
There has been no determination in the probate proceeding as to whether the defendant has complied with these undertakings.
The plaintiff commenced this proceeding by way of originating motion dated 9 May 2017. That document seeks the following relief:
(a) an order that the defendant deliver up to the plaintiff or her solicitors all documents relating to the estate of Arnan Laurence Rouse, deceased, including his Will, and any trusts and companies in which the deceased held an interest; and
(b) an order that the defendant deliver up to the plaintiff or her solicitors all property relating to the estate of Arnan Laurence Rouse, deceased, including any trusts and companies in which the deceased held an interest.
On 9 June 2017 McMillan J made further orders on the papers. The following was recorded in ‘Other Matters’:
A.The defendant was the deceased’s former solicitor.
B.By the orders of the Honourable Justice McMillan made 16 December 2016 in proceeding S PBR 2016 21172, letters of administration ad colligendum bona in respect of the estate of the deceased were granted to the plaintiff.
C.Upon granting letters of administration ad colligendum bona to the plaintiff, the Court noted that the defendant “undertakes to deliver up to the plaintiff or her solicitors all documents relating to the deceased’s estate and any trust and companies in which the deceased held an interest”.
D.In the week following the grant of letters of administration ad colligendum bona, the defendant provided to the plaintiff approximately 21 document boxes of files and documents which included computer drives relating to the deceased’s affairs and which, in the opinion of the defendant, constituted the documents in his possession necessary to facilitate the getting in and preservation of the deceased’s assets for the purposes of the limited grant and included the documents relating to any extant companies and trusts in which the deceased had an interest, and therefore constituted the “documents relating to the deceased’s estate and any trusts in which the deceased held an interest” in accordance with the undertaking.
E.The plaintiff has requested that the defendant provide all files in his possession, including closed files in relation to entities which have ceased to exist, and files relating to his concluded matrimonial property proceedings (“the other files”).
F.The defendant acknowledges that he has files meeting the description of the other files in his possession or control, largely in archive, but was not satisfied that it was appropriate for him to provide those files to the plaintiff in the context of the administration pursuant to the limited grant.
G.The other persons with a potential interest in the deceased’s estate, Eva Rouse and Lila Rouse, both minors, have advised through their solicitors, Russell Kennedy, instructed by Eva’s and Lila’s mother, Kirsten Jan Lloyd, by letter dated 7 June 2017, that they have no objection to the provision of the other files by the defendant to the plaintiff.
H.It has also been alleged that the defendant has computer drives, a will, and other documents belonging to the deceased in his possession or control, which is denied by the defendant.
I.In the circumstances, the parties consent to the making of these orders.
…
The orders made by her Honour were as follows:
3.By 4pm on 6 July 2017, the defendant deliver up to the plaintiff’s solicitors:
(a)all documents, in all formats, relating to the estate of Arnan Lawrence Rouse, deceased, including his will (if any), and any trusts and companies in which the deceased held an interest;
(b)all property relating to the estate of the deceased, including any trusts and companies in which the deceased held an interest; and
(c)all legal files in which the defendant was instructed by the deceased or Mary Rouse or both, whether personally or on behalf of any trusts and companies in which they held an interest.
4.The defendant provide a list of all matters in which he was instructed by the deceased, and the defendant be entitled to remuneration at his usual rates for time spent compiling such list.
5.The defendant’s fees or expenses properly recoverable in obtaining and delivering up the documents in accordance with these orders be paid by the plaintiff.
…
On 17 July 2017 the defendant delivered 16 boxes of documents to the plaintiff’s offices.[7] The defendant maintains that he handed over all relevant documents and property that, as such, he has complied with the 9 June 2017 orders.[8]
[7]Affidavit of Lindsay Rowan Kotzman affirmed 22 November 2017 [12].
[8]Affidavit of Dimitrios Jimmy Diakou sworn 20 June 2018 [29]–[32].
On 27 July 2017 McMillan J made orders on the papers and noted, again in ‘Other Matters’, the delivery of the documents on 17 July 2017. Her Honour observed that the plaintiff required an opportunity to inspect the documents and to consider whether to seek any further orders. The proceeding was accordingly adjourned until 18 August 2017.
On 22 November 2017 the plaintiff’s solicitor, Lindsay Rowan Kotzman, filed a lengthy affidavit (affirmed on the same date).
On 16 March 2018 McMillan J made orders on the papers as follows:
1.By 4.00pm on 5 April 2018 the defendant file and serve an affidavit addressing each of the matters deposed to in the affidavit of Lindsay Kotzman sworn 22 November 2017.
2.The plaintiff be granted leave to cross-examine the defendant as to:
(a)the contents of his affidavit affirmed on 16 December 2016 in proceeding number S PRB 2016 21172;
(b)the contents of his affidavit affirmed on 2 June 2017 herein;
(c)the contents of the affidavit to be filed and served under order 1; and
(d)the contents of the affidavit of Lindsay Kotzman sworn 22 November 2017.
3.The proceeding be set down for trial on 13 June 2018 at 10.30am before the Honourable Justice McMillan on an estimated duration of one day.
4.The defendant attend the hearing fixed under order 3 for the purpose of being cross examined.
...
On 13 June 2018 the matter was listed for trial before me. The defendant sought an adjournment on the basis that he had only just briefed counsel and, as such, required time to prepare. The adjournment was granted. The trial date of 13 June 2018 was adjourned and the proceeding was refixed for trial on 26 June 2018. The defendant was ordered to pay the plaintiff’s costs thrown away by reason of the adjournment on an indemnity basis to be taxed in default of agreement.
The Court otherwise made the same orders as set out in paragraphs [1] and [2] of McMillan J’s orders dated 16 March 2018.[9]
[9]See [15] above.
On 26 June 2018 the defendant produced a notice seeking leave to cross-examine the deponents of any affidavit the plaintiff sought to rely on or the substance of which would be put to him in cross-examination. I granted the leave sought by way of an ex tempore ruling. I also determined, for reasons of procedural fairness, that the hearing would take the form of a trial rather than an oral examination. I noted that the 16 March 2018 and 13 June 2018 orders were, to some extent, equivocal and certainly gave the flavour of an oral examination. However, while they did not expressly contemplate a right of reply, I concluded that the orders did not shut out the defendant’s rights under the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’).
The trial was refixed for hearing on 2 July 2018 on a three day estimate.
On 2 July 2018 the defendant served and subsequently filed a further affidavit and exhibits which filled three large lever arch folders.
The trial commenced on 2 July 2018. The witnesses called on behalf of the plaintiff were:
(1) the plaintiff, Mary Rouse;
(2) Lindsay Rowen Kotzman;
(3) Kingsley Andrew Barker; and
(4) Carla Prat-Martin.
Each witness was cross-examined by counsel for the defendant. The defendant then gave evidence and was cross-examined by counsel for the plaintiff.
The parties agreed at the outset that the Court would oversee the production of the evidence and ensure the fair conduct of the trial. It was agreed that the plaintiff already had the relief sought, in the form of the 9 June 2017 orders for the production of documents and property, which could not be furthered. The trial would therefore involve the lawful taking of evidence, under the supervision of the Court, but without the judge making any findings or rulings except of an evidentiary nature.
How the evidence was to be used was somewhat equivocal. As counsel for the plaintiff put it, at its highest, the evidence could be used ‘in any other civil proceeding or for taking any other step in the administration of the estate’.[10] One might ordinarily expect, in the circumstances, the plaintiff to shoulder the costs of the litigation—as, for example, in a non-party discovery application. However, at the conclusion of the trial, the plaintiff sought an order that the defendant pay the plaintiff’s costs of the proceeding.
[10]T112.24-112.26.
Plaintiff’s submissions
It was submitted on behalf of the plaintiff that:
(a) the deceased’s estate had been driven to great expense through the non-cooperation and behaviour of the defendant and that the estate should not have to carry the burden of that disbursement;
(b) the defendant, from the start, did not cooperate, was evasive and forced the estate and its advisers to the expense and trouble of this proceeding;[11]
(c) the defendant’s conduct had been inexcusable and the delay and the reason for these proceedings was inextricably caught up with the defendant’s behaviour;[12]
(d) the plaintiff’s application was confined to a one day hearing for the cross-examination of the defendant and it was the defendant’s application which made it necessary for the attendance and cross-examination of the plaintiff, Mr Barker; Ms Prat-Martin and Mr Kotzman.
[11]T523.13-525.18.
[12]T523.26-523.29.
It was submitted that the plaintiff was entitled to her costs up until 20 June 2018, by which time the defendant had filed an affidavit in compliance with the orders made on 13 June 2018 and in addition, that the plaintiff is entitled to the costs on the basis that the orders made on 16 March 2018 and 13 June 2018 contemplated that the defendant would deliver his affidavit and would then be cross-examined on the contents of that affidavit.
It was submitted that it was always contemplated by the latter orders that the defendant would be cross-examined and that the extra costs associated with this case due to the enlargement of the proceeding were due to the very late application by the defendant to enable the cross-examination of the various witnesses. It was said that the structure of the hearing had been drastically changed and the plaintiff put to significant expense and trouble because of that.
It was further submitted that there would not have been a need for the 16 March and 13 June 2018 orders but for the defendant’s non-compliance, last minute manoeuvres and stalling tactics.
Defendant’s submissions
The defendant submitted that the costs in this proceeding fell into two parts.
The first part came to a close when the relief sought in the originating motion was granted by the 9 June 2017 orders. Counsel submitted that, after those orders were made, the defendant delivered up the documents on 17 July 2017 and so achieved a state of satisfactory compliance.
The second part was effectively agitated by the Kotzman affidavit dated 22 November 2017 in which Mr Kotzman set out what he perceived on instructions to be deficiencies in the production of the documents. Further orders were then made by McMillan J on 16 March 2018 for the defendant to produce an affidavit responding to the matters raised in Mr Kotzman’s affidavit and giving the plaintiff leave to cross-examine the defendant on the terms as set out at [15] above.
Counsel for the defendant conceded that the affidavit filed by the defendant on 20 June 2018 was egregiously late. Counsel further conceded that the 13 June 2018 adjournment was due to the defendant’s delay in retaining counsel and that the costs thrown away had already been ordered against the defendant. Counsel submitted that the 13 June 2018 adjournment, however, was to allow the plaintiff time to prepare after the Court gave the defendant leave to cross-examine the deponents of the plaintiff’s affidavits.
The defendant submitted that, on the basis that the plaintiff already had the relief sought and did not seek any further orders, findings of fact or determinations on the merits, there had been no ‘success’ or ‘failure’ in the proceeding. It was submitted that the Court should make no order for costs because there is ‘no event to follow’. In other words, since the Court has not made any orders or granted any further relief, there has been no event.
Counsel for the defendant conceded that it would be open to the Court to order the defendant to pay the plaintiff’s costs from the beginning of the proceeding until the date of the 9 June 2017 orders. Counsel submitted that from 9 June 2017 onwards, however, the Court should make no order as to costs.
Legal principles as to costs
Section 24 of the Supreme Court Act 1986 gives the Court a broad discretion in relation to the awarding of costs. This discretion must be exercised in accordance with O 63 of the Rules. What is more, it must be ‘exercised judicially’,[13] which is to say it must be exercised taking into account all relevant considerations and ignoring all irrelevant considerations.[14]
[13]Puddy v Borg [1973] VR 626, 628.
[14]Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435, 442 [25], citing House v The King (1936) 55 CLR 499, 505.
As I have said, the usual order as to costs is that ‘costs follow the event’, meaning the successful party in litigation is entitled to an award of costs in its favour.[15] The ‘event’ referred to is success in the action or on discrete issues.[16] The central principle that underlies the exercise of the discretion is that the Court awards costs not to punish the unsuccessful party but to ‘indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.’[17]
[15]Oshlack v Richmond River Council (1998) 193 CLR 72, 97 (McHugh J) (‘Oshlack’). See also Lutar v Carley [2017] VSC 366 [17] (McMillan J).
[16]Re The Minister for Immigration and Ethnic Affairs (Cth); Ex Parte Lai Qin (1997) 186 CLR 622, 624–5 (McHugh J) (‘Lai Qin’).
[17]Latoudis v Casey (1990) 170 CLR 534, 543 (Mason CJ). See also Anstee v Jennings (1935) VLR 144, 148; Cilli v Abbott (1981) 53 FLR 108; Kelly v Noumenon Pty Ltd (1988) 47 SASR 182, 184.
It is neither desirable nor possible exhaustively to list the circumstances that inform the discretion to make an order for costs. However, when considering such an order, a court should ordinarily have regard to the following:
(a) The general rule is that costs follow the event, that is, they will usually be awarded in favour of the successful party (or parties);
(b) the ultimate outcome of the litigation will usually be the most important factor informing the proper exercise of the discretion (a principle which necessarily directs attention to substantive determination on the merits);
(c) when determining what order as to costs the justice of the case requires, the court should have regard to the reality of the outcome of the case; and
(d) the reality of the outcome of a case may be such that although a party succeeded in obtaining an award, that award is so small in the relevant context of all the issues and claims and outcomes in the case that the party which succeeds in obtaining an award is, in reality, an unsuccessful party.[18]
[18]Winky Pop Pty Ltd v MobilRefining Australia Pty Ltd [2015] VSC 580 [34] (Digby J) citing Oshlack (1998) 193 CLR 72 [70] (McHugh J).
In Latoudis v Casey Mason CJ described the discretion as follows:
The unfettered nature of the discretion had been emphasized in the earlier Victorian decision of Puddy v Borg (1973) VR 626. That case decided that there is no prima facie rule one way or the other and that the discretion is to be exercised in each case according to its own circumstances, this being the principle which now prevails in Victoria. The judgment of Winneke CJ, Smith and Menhennitt JJ states the position of these terms (at page 628):
‘The discretion is one to be exercised in each case according to its own circumstances. Beyond limiting the power to such costs as to the court seems just and reasonable, the sub-section does not otherwise circumscribe the discretion conferred. No doubt it must be exercised judicially so as to achieve what is fair and just between the parties according to the circumstances of the particular case, and its exercise is open to challenge according to the well-established rules which govern the exercise of discretionary powers.’[19]
[19](1990) 79 CLR 534 [6].
Section 65C of the Civil Procedure Act 2010 provides further statutory support for the proposition that the Court may make such costs orders as it considers appropriate.
As Hodgson JA (with whom Mason P agreed) observed in Commonwealth of Australia v Gretton:
In my opinion, underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the Court considers to be the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was a defendant’s responsibility because the plaintiff was caused to incur costs by the defendant’s failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if the plaintiff wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled.[20]
[20][2008] NSWCA 117 [121] (citations omitted).
As I have said, the rationale underlying the jurisdiction is that it is just and reasonable that an unsuccessful party who causes another party to incur the cost of litigation should reimburse that party.[21] In other words, costs between party and party are given as indemnity to the person entitled to them, they are not imposed to punish the party who pays them.[22]
[21]Latoudis v Casey (1990) 170 CLR 566–7 (McHugh J).
[22]Victoria v Horvath (No 2) [2003] VSCA 24 [7].
I note in passing that the ‘event’ referred to in the usual rule ‘costs follow the event’ is ordinarily understood to encompass not only to the ultimate outcome of a proceeding but also the determination of each individual issue in the case. It is also understood to include any order made by a court.
In this case, in addition to the interlocutory process, there were four days of oral evidence after which the Court was asked to make no order or determination on the merits. This was in circumstances where the evidence was contested and gave rise to significant issues of credit. The trial was thus conducted on the basis that the evidence would, if at all, be used in another civil proceeding in this Court or elsewhere. The explicit rationale given was that it would be used in furtherance of the administration of the deceased’s estate in the probate proceeding.
Consideration
There is no evidence before the Court to impugn the plaintiff’s action in commencing this proceeding. Having been granted letters of administration ad colligendum bona in the probate proceeding, the plaintiff had an obligation to collect and preserve the assets of the deceased’s estate.
While there has been no finding as to whether the defendant complied with the undertaking in the probate proceeding, it can be readily inferred that he had not fully complied. At best he delivered some documents to the plaintiff in the course of the probate proceeding. But it was in the instant proceeding that he delivered some 16 boxes of documents and property to the plaintiff on 17 July 2017. In these circumstances, it was reasonable and arguably necessary for the plaintiff to commence this proceeding, seeking relief that was in effect identical to the undertaking given.
The chronology reveals that by 9 June 2017 the plaintiff had obtained the relief sought in the originating motion. The 9 June 2017 orders required the defendant to deliver all relevant documents and property to the plaintiff. They also dealt with the issue of costs. The plaintiff was ordered to:
(a) remunerate the defendant at his usual rate for time spent compiling a list of all matters in which he was instructed by the deceased (order 4); and
(b) pay the defendant’s fees or expenses properly recoverable in obtaining and delivering up the documents in accordance with the 9 June 2017 orders (order 5).
Costs were otherwise reserved. This is consistent with the notion that, at this time, the defendant was still to be seen as assisting the plaintiff in the discovery of documents necessary for the administration of the estate and, as such, was to be compensated for his time and reasonable expenses incurred as one would ordinarily expect to occur in the context of discovery by a non-party (even though, in the instant proceeding, he was a party).
On 17 July 2017 the defendant delivered the aforementioned 16 boxes of documents to the plaintiff. On 16 March 2018 McMillan J made further orders flowing from the 9 June 2017 order. Those orders effectively extend the scope and ambit of the 9 June 2017 orders. They provided the plaintiff with further relief, which was not sought in the originating motion, but which the Court deemed necessary to ensure the plaintiff would be able to properly administer the deceased’s estate.
The 16 March 2018 order put into motion a series of steps which expanded the scope of this proceeding and, as it turned out, rendered the ‘trial’ a much more comprehensive inquiry than had previously been foreshadowed. This was, as I have said, at the request of the defendant who produced a notice to cross-examine the deponents of each of the affidavits relied on by the plaintiff.
It is clear that the plaintiff’s concern, even after the 16 boxes were delivered on 17 July 2017, was that there were still outstanding documents and property which the defendant either had in his possession, or had previously possessed, in which case an explanation was sought as to how they had been disposed of.
There is no real dispute that the plaintiff would ordinarily be entitled to the estate’s costs up until 9 June 2017 (that is, those costs reserved in the 9 June 2017 orders, as opposed to those ordered to be paid by the plaintiff). At that point the plaintiff had been successful in obtaining the relief sought and thus costs should follow the event. But what of the costs incurred following the 9 June 2017 orders?
The 16 March 2018 order gave further relief to the plaintiff. The latter order, unlike the 9 June order, does not provide for any of the defendant’s costs. Those orders included a direction that, no later than 5 April 2018, the defendant file and serve a responsive affidavit to the affidavits relied on by the plaintiff. The defendant filed the affidavit egregiously late on 20 June 2018 and, on 2 July 2018, served and subsequently filed a further voluminous affidavit that traversed three lever arch folders.
As I have said, the defendant was successful in persuading the Court that for reasons of procedural fairness he should not be shut out from the ordinary right of reply that is provided in the Rules, from which it followed that he be granted leave to cross-examine the deponents of the affidavits relied on by the plaintiff. The Court accordingly made the orders sought and what was originally intended as one day oral examination became a four day trial.
I disagree with the defendant’s submission that in this case there has been ‘no event’ subsequent to the 9 June 2017 order. Once again, the 16 March and 13 June 2018 orders are in furtherance of the 9 June 2017 order, and it was on the defendant’s application that the nature of the proceeding changed from a relatively swift and straightforward oral examination to a complex and costly four day trial.
The 16 March 2018 order gave rise to a fresh event, that is, an order granting leave to the plaintiff to cross-examine the defendant on a number of matters. Regrettably, the relief sought and obtained in the 9 June 2017 order was not sufficient, it then being necessary to make further orders so that the plaintiff could progress the administration of the deceased’s estate. This was through no fault of the plaintiff. Whether it was through fault of the defendant would require a substantive determination that I have been asked not to make. In any event, regardless of whose fault it was, the simple fact is that the plaintiff was seeking and then complying with the terms of the 16 March 2018 orders.
The defendant cannot avoid castigation for the unreasonable manner in which he has conducted himself in this litigation. This is in circumstances where he is an experienced legal practitioner. Despite the 16 March 2018 orders, the defendant failed to produce a responsive affidavit in a timely fashion (see order 1); he then made an application for an adjournment on day one of the trial, on 13 June 2018, on the basis that he had only just been able to retain counsel. It was not until 20 June 2018 that the plaintiff received the aforementioned affidavit, which was due on 5 April 2018, after which the defendant, on day one of the trial on 2 July 2018, produced a voluminous affidavit and exhibits. Finally, on 20 June 2018, the defendant made another late application seeking to cross-examine the deponents of the affidavits relied on by the plaintiff. This necessitated another adjournment so the plaintiff could prepare for the much enlarged scope of the trial.
This sorry procedural history reveals a pattern of conduct that, in my view, has been less than reasonable. The defendant has at all material times had the capacity to expedite the matter, but has chosen to delay and stall, which has frustrated the administration of justice. This has not only prevented the timely resolution of this proceeding but also of the probate proceeding.
As discussed, at the time of the 16 March 2018 orders, it was not envisaged that the examination of the defendant would take more than one day. The fact that it took more than that is regrettable but a common occurrence in litigation. It does not alter the underlying position: the plaintiff obtained the 16 March 2018 and 13 June 2018 orders in furtherance of the original relief sought and was put to the cost of this proceeding by the defendant. I hasten to add that, by virtue of the defendant’s unreasonable conduct in running this litigation, the plaintiff’s costs have become greatly enlarged.
Conclusion
As such I consider the defendant should, excluding any pre-existing order for costs, pay the plaintiff’s costs of the proceeding on a standard basis. The proceeding is otherwise dismissed.
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