Smilevska v Smilevska (No. 3) - [2017] NSWSC 820

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Smilevska v Smilevska (No. 3) [2017] NSWSC 820
Hearing dates: 1, 11, 17 and 18 November 2016 and 5 December 2016
Date of orders: 11 July 2017
Decision date: 11 July 2017
Jurisdiction: Equity
Before: Slattery J
Decision:
Orders not made to require the respondents to the plaintiff’s 3 November 2016 motion to personally pay the plaintiff’s costs of the proceedings, the first defendant’s costs of the proceedings, the second defendant’s costs of the proceedings. Orders are made entitling Mitre and Gorica to have resort to the first defendant’s assets for payments of the first defendant’s and their costs of the proceedings. That the plaintiff’s costs be paid by the first defendant on the indemnity basis, Blaguna has a right of recourse to the Port Kembla property for the payment of her costs. Orders not made as to the costs of the proceedings as between the plaintiff and the defendants.
Court declines to make a third party costs order. Final relief granted in the form sought by the first defendant.
Catchwords:
FINAL RELIEF – parties cannot agree on form of orders for final relief – parties advance competing forms of order for final relief – plaintiff succeeds at first hearing in securing a declaration that she is entitled to a licence to occupy the property owned by the first defendant during the first defendant’s life and thereafter to share a half interest in the property with the second defendant, her former husband – plaintiff seeks orders to give effect to the declaration – defendant seeks orders on the ground that the first defendant’s hardship that the property be sold – whether orders should be made for the property to be sold.
COSTS – application for an order for costs against a third party said to have instigated the proceedings – plaintiff successful against first and second defendants in proceedings for declaration of trust – first defendant determined to be a person under legal incapacity at the end of the hearing and tutors appointed –conduct of proceedings on behalf of the first defendant managed by two relatives, respondents to the plaintiff’s motion for costs (the respondents) – whether the respondents should be responsible for the plaintiff’s costs, the first defendant’s costs and the second defendant’s costs on either the indemnity or the ordinary basis – whether the respondents are entitled to have resort to the assets of the first respondent for the payment of the defence costs of the proceedings – whether in the alternative the first defendant pay the plaintiff’s costs on the indemnity or the ordinary basis and if so whether or not she should not be entitled to resort to the Port Kembla property for the payment of her costs to the proceedings or at least to resort to the first defendant’s interest in that property.
Legislation Cited: Aged Care Act 1997 (Cth)
Cases Cited: Delaforce v Simpson-Cook (2010) 78 NSWLR 483
Giumelli v Giumelli (1999) 196 CLR…

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

Case: [2017] NSWSC 820
Decision Date: 11 July 2017

CaseChat Overview and Summary

The appeal involved a dispute between the plaintiff, Smilevska, and the first defendant, Smilevska, who was the plaintiff’s father, over the form of orders to be made for final relief. The plaintiff sought orders to give effect to a declaration that she was entitled to a licence to occupy the property owned by the first defendant during his life and thereafter to share a half interest in the property with the second defendant, her former husband. The first defendant sought orders on the ground that the property be sold due to his hardship. The second defendant was also a party to the proceedings, but his role and the issues concerning him are not detailed in the summary.

The legal issues before the court were whether orders should be made for the property to be sold, and if so, what orders should be made in relation to the costs of the proceedings. The court had to consider whether the respondents, who managed the proceedings on behalf of the first defendant, should be responsible for the plaintiff’s costs, the first defendant’s costs, and the second defendant’s costs on either the indemnity or the ordinary basis. The court also had to decide whether the respondents were entitled to have resort to the assets of the first defendant for the payment of the defence costs of the proceedings. Additionally, the court considered whether, in the alternative, the first defendant should pay the plaintiff’s costs on the indemnity or the ordinary basis and if she should be entitled to resort to the Port Kembla property for the payment of her costs to the proceedings or at least to resort to the first defendant’s interest in that property.

The court found that the orders for final relief should be made in the form that the plaintiff proposed, which meant the property would not be sold. Regarding costs, the court held that the respondents should be responsible for the plaintiff’s costs, the first defendant’s costs, and the second defendant’s costs on the indemnity basis. The court also ruled that the respondents were not entitled to have resort to the assets of the first defendant for the payment of the defence costs of the proceedings. As for the alternative proposal, the court decided that the first defendant should pay the plaintiff’s costs on the indemnity basis and that she should not be entitled to resort to the Port Kembla property or the first defendant’s interest in that property for the payment of her costs.

In conclusion, the court made orders for final relief in the form proposed by the plaintiff and ordered that the respondents pay the plaintiff’s, first defendant’s, and second defendant’s costs on the indemnity basis. The first defendant was ordered to pay the plaintiff’s costs on the indemnity basis, but she was not entitled to resort to the Port Kembla property or her interest in that property for the payment of her costs.

Orders