Sadri v Samian (No 4)
[2010] VSC 280
•18 June 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 6652 of 2006
| SEPIDEH SADRI | Plaintiff |
| v | |
| ALI REZA SAMIAN | Defendant |
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JUDGE: | HANSEN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 18 June 2010 | |
DATE OF JUDGMENT: | 18 June 2010 | |
CASE MAY BE CITED AS: | Sadri v Samian (No 4) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 280 | |
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JUDGMENT – Defaulting executor – Interest – Costs – Indemnity basis.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Perkins | David Perkins |
| The Defendant appeared in person |
HIS HONOUR:
I gave judgment in this proceeding last week and concluded that the defendant ought pay the plaintiff $17,400 plus interest to be assessed. Today I have heard submissions as to the appropriate rate for the determination of interest and costs.
When I gave judgment last week I suggested that a rate of six per cent might be considered appropriate for interest. I also invited submissions as to whether interest should be simple or compound. Mr Perkins has suggested a rate in the order of eight to nine per cent and Mr Samian has suggested a rate in the order of five per cent, after having consulted solicitors. It is implicit in the fact that I had suggested the rate that I did last week, that I do not consider the interest rate fixed under the Penalty Interest Rates Act 1983 is appropriate. I think, considering the matter overall, that a rate of six per cent is appropriate and that interest ought be calculated on a compound basis down to today from the commencement date I specified in the judgment. That is an amount of $5,946.37 which will be added to the judgment amount.
I turn then to the question of costs. Here there is a question of the appropriate scale. That is to say, whether it ought be Supreme Court or on some lesser scale. There is also the question of the basis upon which the costs ought to be taxed or assessed. That is to say, whether party and party or a higher and different basis. Mr Perkins has sought costs on an indemnity basis.
On the other hand, in his submissions Mr Samian has referred to the burdens that he faced in acting as executor in the estate. He also referred to costs that have had to be borne including by him personally in administering the estate. That may be so, but I am concerned with the payment of costs in proceedings successfully brought against him. He did, however, mention his costs reserved by a Master at a hearing on 8 September 2006 when neither the plaintiff nor any person appearing on her behalf appeared before the Master; that is apparent from the order. It may be, as Mr Perkins said, and I would have no reason to doubt, that the reason for the non-appearance was that counsel misapprehended the appearance time. That, of course, is not the fault of the defendant. I will except from the order for costs that I make the defendant's reserved costs of that day.
Mr Samian also raised the matter of costs in respect of matters such as searches in respect of the properties that he has had to make in dealing with this case, and in particular as to the cost of valuations. He mentioned here particularly the valuation of the Southbank unit. He also had interpreter’s costs.
I consider, however, that it is not appropriate in this case to seek to separate issues, or items of costs, from the point of view of the awarding of costs. That would be an altogether far too complex, and in my view impossible, exercise to engage in, and one likely to produce injustice, having regard to the breadth of the issues raised and dealt with in the judgments that I have had to deliver.
It is not to be overlooked that if the defendant had in the course of administration of the estate attended, as ought have been done, to the ascertainment of value of properties, then the evidence of that would have been on the solicitor’s probate file or in the defendant's possession, and would have been expected, I consider, to have been readily provided in answer to a query. It is singular that in this case the probate solicitor did not give evidence. It is almost inescapable that something occurred at that end in relation to advice as to how the defendant ought act that has at least in part caused the litigation. I make it plain though that I am not in a position to make findings as to the performance or otherwise of the probate solicitor, except to the extent I may already have done in my previous judgments.
In short, I consider that it is not appropriate, considering the matter overall, and taking account of all that I have had to consider in the case, to itemise out against the plaintiff various items of expense incurred by the defendant in defending the case. In a real sense he has brought the case on himself.
The defendant also produced to me this morning a written offer that had been made by letter dated 2 June 2008. The offer was to pay the sum held in the solicitors’ trust account in full settlement of all claims, including costs. That amount was $19,948.10. Plainly, the plaintiff has done better than that offer and accordingly notwithstanding whatever sense there may have been in the making of the offer it does not provide a basis to make an adverse costs order against the plaintiff.
The question then is on what scale costs ought be awarded. The case was not a straightforward matter. It involved serious allegations, a deal of unascertained information, and issues that might have been considered to warrant litigation in this court. However, at the end of the day and with patience the issues were clarified and the judgment sum determined in an amount that, all told, indicates the case was appropriate for the County Court. I consider, regarding all relevant matters, that the appropriate basis, or scale, upon which to order costs in favour of the plaintiff as the successful party is on the County Court scale appropriate to the amount recovered and that is Scale C.
The question that then has to be dealt with is upon what basis ought the costs be taxed or assessed. As to this I consider, having regard to a range of matters, that they ought to be taxed or assessed on an indemnity basis. My reasons for that conclusion may be expressed shortly. There was, I consider, to be seen in all of the circumstances, conduct by the defendant as executor fairly to be described as high-handed in regard to the plaintiff and which led to and prolonged the litigation. So much is evident from my judgments. The trust created by the deceased was in effect ignored and put aside. The Natoli correspondence was in effect ignored and put aside. It was said in the defence that the defendant acted on the advice of the probate solicitor, but that solicitor was not called to establish the advice or to otherwise establish the propriety of the acts in administration of the estate called into question. There was a failure to get in and properly deal with the Iranian land. There was dealing with the estate before the expiration of the six month period. There was the wasted effort and hearing which led to the second judgement and a continuation of relying on inadmissible materials, all of which led to unnecessary delay, vexation and expense.
In all of these circumstances, therefore, I consider that indemnity is an appropriate basis. I will therefore make the following orders.
(1)There be judgment for the plaintiff and an order that the defendant (as executor and trustee of the estate of Mona Samian, deceased and personally) pay to the plaintiff $17,400.00 plus interest in the amount of $5,946.37.
(2)The defendant (as executor and trustee of the said estate and personally) pay the plaintiff’s costs of the proceeding including reserved costs, such costs to be taxed or assessed on County Court Scale C on an indemnity basis. There is to be set off against such costs the defendant’s costs reserved on 8 September 2006 and the costs payable to the defendant under the order of Daly AsJ made 22 May 2007, such costs to be taxed or assessed in the absence of agreement as to the amount thereof.
(3)The proceeding is otherwise dismissed.
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