Sariban v Pocock; Pocock v Peipman (No 2) - [2018] NSWSC 982

Supreme Court

New South Wales

Medium Neutral Citation: Sariban v Pocock; Pocock v Peipman (No 2) [2018] NSWSC 982
Hearing dates: 26 June 2018
Date of orders: 26 June 2018
Decision date: 26 June 2018
Jurisdiction: Equity
Before: Hallen J
Decision:
See Paragraph 5, 8 and 15

Catchwords:
PROCEDURE – FAMILY PROVISION – COSTS – Agreement as to costs as between Plaintiff and first Defendant – Agreement did not deal with costs of second Defendant – General rule – Costs follow the event
PROCEDURE – COSTS – Costs in related possession proceedings – Overall justice of the case does not warrant what would effectively be an indemnity costs order being made against Defendant
Cases Cited: Sariban v Pocock; Pocock v Peipman [2018] NSWSC 724
Category: Costs
Parties:
2016/382014
Ruth Vivian Sariban (Plaintiff)
Ingrid Orlanda Amalie Pocock (first Defendant)
Samuel Eskil Peipman (second Defendant)
2017/180094
Ingrid Orlanda Amalie Pocock (Plaintiff)
Samuel Eskil Peipman (Defendant)
Representation:
Counsel:

2016/382014
Mentioned by Mr D Liebhold (Plaintiff)
Mr D Liebhold (first Defendant)
In person (second Defendant)

2017/188094
Mr D Liebhold (Plaintiff)
In person (Defendant)

Solicitors:

2016/382014
Slater & Gordon Lawyers (Plaintiff)
Hunt & Hunt Lawyers (Defendant)
In person (second Defendant)
2017/188094
Hunt & Hunt Lawyers (Plaintiff)
In person (Defendant)

File Number(s): 2016/382014, 2017/180094

Judgment – EX TEMPORE (REVISED)

HIS HONOUR: In these matters, I delivered reasons for judgment which bear the medium neutral citation Sariban v Pocock; Pocock v Peipman [2018] NSWSC 724.
There were two cases. The first was one brought by Ruth Vivian Sariban for a family provision order. In those proceedings, Ingrid Orlanda Amalie Pocock was the first Defendant and Samuel Eskil Peipman was the second Defendant. The second was one brought by Ingrid, as the trustee of the intestate estate of Eskil Peipman (who had died on 3 October 1958), seeking possession of the Ryde property in which she held an interest as the trustee of his estate. Samuel was the sole Defendant in those proceedings. The estate of the deceased in the family provision proceedings was entitled to the remaining one-third of the Ryde property. It passed under the deceased’s Will to Samuel.
In the family provision proceedings, I dismissed the claim. In the possession proceedings, I made orders for possession of the Ryde property in favour of Ingrid.
The remaining issue now relates to the costs of both proceedings as at the hearing, the Court was requested not to deal with the issue of costs.
In relation to Ruth's proceedings, the legal representatives of Ruth and Ingrid came to an agreement on costs, the effect of which was that the Ingrid’s costs, calculated on the ordinary basis were to be paid by Ruth and be paid or retained, as the case may be, out of Ruth’s share of the proceeds of sale of the Ryde property to which she was entitled on the intestacy of Eskil; and that the difference between those costs, and her costs calculated on the indemnity basis of the proceedings, were to be…

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.

Keep reading for free

Create a free CaseChat account to read Sariban v Pocock; Pocock v Peipman (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWSC 982
Decision Date: 26 June 2018

CaseChat Overview and Summary

The proceedings involved Sariban, the plaintiff, and Pocock, the first defendant, with Peipman, the second defendant, also a party in the litigation. The matter was heard in the Family Court of Australia, primarily concerning issues of family provision and costs. Sariban sought family provision against Pocock, and the matter extended to include Peipman due to their involvement in related possession proceedings. The court was tasked with resolving issues around the agreement on costs between Sariban and Pocock and determining the appropriate costs in relation to Peipman.

The primary legal issues before the court were whether the agreement on costs between Sariban and Pocock could be extended to Peipman and if the overall justice of the case warranted an indemnity costs order against Peipman. The court needed to interpret the terms of the costs agreement and assess whether it was intended to cover Peipman. Additionally, the court had to consider the appropriateness of imposing an indemnity costs order against Peipman in the context of the related possession proceedings.

The court determined that the agreement on costs between Sariban and Pocock did not encompass Peipman, as the agreement was specific to the parties involved in that particular arrangement. The court followed the general rule that costs follow the event, meaning that Peipman would be responsible for their own costs unless otherwise specified. Furthermore, the court found that the overall justice of the case did not support what would effectively be an indemnity costs order against Peipman, given the complexities and unique circumstances of the related possession proceedings. Consequently, the court ruled that Peipman would not be liable for an indemnity costs order.

The court ordered that Sariban and Pocock's costs agreement did not extend to Peipman, and Peipman was not to be held liable for an indemnity costs order. Each party was to bear their own costs, and the court did not impose an indemnity costs order against Peipman.

Orders