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)

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 paid out of the estate of the deceased. That agreement is appropriate in all the circumstances.

6. Regrettably, the agreement reached did not deal with Samuel’s costs of Ruth’s proceedings. He was the second Defendant, who had been joined as a party pursuant to orders made by Ward CJ in Eq on 6 October 2017.

7. As stated previously, Samuel appeared unrepresented at the hearing (and again today). There had been some evidence given at the hearing, that he had, at one stage of the proceedings, been legally represented. He told me today that he thought that some costs had been incurred by him in relation to Ruth's proceedings, although there was no evidence advanced by him in relation to such costs, if any, that had been incurred.

8. There is no reason why Ruth should not pay Samuel's costs, calculated on the ordinary basis, if any part of the legal costs he had incurred, were in relation to Ruth’s proceedings and whilst he was a Defendant in those proceedings. There was no suggestion that he was not a proper Defendant.

9. Since Ruth’s claim was dismissed, it follows that she should bear the legal costs of Samuel, if any, incurred by him as the second Defendant in her proceedings.

10. In relation to Samuel's proceedings, there is no reason why the usual order for costs should not be made against Samuel. He was the Defendant in the proceedings who did not succeed in his defence of those proceedings with the result that additional costs were incurred.

11. In the circumstances, Samuel should pay Ingrid’s costs, calculated on the ordinary basis, of the possession proceedings. The parties should attempt to reach agreement on the quantum of those costs.

12. Ingrid, in the possession proceedings was acting as the executor of the deceased's estate, and also as the trustee of Eskil’s intestate estate. The only other question relates to how the difference between Ingrid's costs, calculated on the indemnity basis, of the possession proceedings, and her costs calculated on the ordinary basis, should be met.

13. Counsel for Ingrid submitted that, to the extent that there was a difference, those costs should be paid out of Samuel's entitlement under the Will of the deceased. No reasons why this order should be made were advanced.

14. I do not accept that submission because, in my view, it would result in Samuel having to pay the whole of Ingrid's costs, calculated on the indemnity basis, of the possession proceedings, in circumstances where Ingrid was representing not only the estate of the deceased, but also the beneficiaries of the intestate estate of Eskil.

15. Doing the best I can, and considering the justice of the case, the costs payable by Samuel in respect of the possession proceedings should be limited to Ingrid’s costs calculated on the ordinary basis. To the extent that there is a difference between her costs calculated on the indemnity basis, and her costs calculated on the ordinary basis, those costs should be paid out of the proceeds of sale of the Ryde property to which Eskil’s estate is entitled.

16. Accordingly, the Court directs that Ingrid's solicitors provide to my Chambers, by 4:00 p.m. on Friday, 29 June 2018, orders that reflect these reasons on the issue of costs.

17. I have taken this course as there was no appearance by Ruth’s legal representatives (Ingrid’s counsel mentioning the matter on their behalf).

18. The exhibits will be retained within the Court file, although the Court Books may be returned.

**********