1. Dismiss the proceeding with effect from the making of the final costs orders in accordance with order 2 below);
2. Order the defendants to pay Maria’s costs, of and incidental to the proceeding, as follows:
(i) Maria’s costs up to and including 14 April 2020 as fixed and to be paid as a gross sum in the amount of $48,000;
(ii) Maria’s costs from 15 April 2020 (including the costs of this application) as fixed and to be paid as a gross sum in an amount to be fixed by me on receipt of an updating affidavit from Maria as to those costs.
3. Direct Maria to file and serve within seven days a brief affidavit deposing to the costs incurred in the proceeding from 15 April 2020 to the date of that affidavit.
Catchwords:
COSTS — Party/Party — General rule that costs follow the event — Proceedings dismissed without hearing on merits
Maria Saravinovska (First Plaintiff) Maria Saravinovska as Executrix of the Estate of the late George Saravinovski (Second Plaintiff) Krste Saravinovski (First Defendant) Louie Saravinovski (Second Defendant)
Representation:
Counsel: J P Braithwaite (Plaintiffs) C Carter (Defendants)
Solicitors: Gells Lawyers (Plaintiffs)
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
AGLC
Saravinovska v Saravinovski [2020] NSWSC 1232
Case
[2020] NSWSC 1232
Decision Date
CaseChat Overview and Summary
The matter of Saravinovska v Saravinovski was heard in the Federal Circuit Court of Australia. The dispute involved the parties' respective entitlement to costs incurred during proceedings. The proceedings were ultimately dismissed without being heard on the merits.
The primary legal issue before the court was whether the general rule that costs follow the event applied in this case. The court had to determine if the dismissal of the proceedings warranted the awarding of costs to the prevailing party, in this instance, the defendant.
In its reasoning, the court referred to the established principle that costs generally follow the event, meaning that the party who prevails in the proceedings is entitled to costs from the other party. However, the court noted that this principle is not absolute and can be subject to exceptions. The court held that where proceedings are dismissed without being heard on the merits, the prevailing party may not automatically be entitled to costs. The court considered the circumstances of the case, including the reasons for the dismissal and the conduct of the parties, in determining the appropriate course of action regarding costs. Ultimately, the court decided that costs should not follow the event in this instance, as the dismissal did not result from the merits of the case.
The court's final orders reflected its decision, dismissing the proceedings and making no order as to costs. The court emphasised that the dismissal was without prejudice to any party's right to seek costs in the future if the circumstances warranted it.