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Rouse v Diakou

Rouse v Diakou

Case [2018] VSC 396 23 July 2018

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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…

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 Rouse v Diakou

Details

AGLC: Rouse v Diakou [2018] VSC 396
Case: [2018] VSC 396
Decision Date: 23 July 2018

CaseChat Overview and Summary

In the matter of Rouse versus Diakou, the court was tasked with adjudicating on a dispute concerning the discovery of documents necessary for the proper administration of an estate. The proceedings took place in the Supreme Court of Victoria. The primary contention was whether the defendant, Diakou, should be compelled to provide certain documents, and if so, what the implications would be in terms of costs.

The court was required to determine several legal issues, including the necessity of the discovery of documents for the proper administration of the estate, the extent of the defendant's compliance, and the principles governing costs in such proceedings. Notably, the court had to consider whether the defendant's conduct in the litigation was reasonable and whether there was any merit in the defendant's argument that the proceedings were not necessary.

The court's reasoning revolved around the principles established in previous cases such as Paddy v Borg, Latoudis v Casey, and Re The Minister for Immigration and Ethnic Affairs (Cth); Ex Parte Lai Qin. The court held that the defendant's conduct in the litigation was not reasonable and that the proceedings were necessary for the proper administration of the estate. As a result, the court exercised its discretion to depart from the usual rule that costs follow the event, and ordered that the defendant bear the costs of the proceedings. The court did not make any findings on the merits of the dispute, focusing instead on the conduct of the litigation and the necessity of the proceedings.

In light of the above, the court ordered that the defendant, Diakou, pay the costs of the proceedings. This decision underscores the importance of the proper administration of estates and the court's willingness to hold parties accountable for unreasonable conduct during litigation.

Orders