Smilevska v Smilevska (No. 4) - [2018] NSWSC 1847

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Smilevska v Smilevska (No. 4) [2018] NSWSC 1847
Hearing dates: 4 December 2017 and 13 April 2018
Date of orders: 04 December 2018
Decision date: 04 December 2018
Jurisdiction: Equity
Before: Slattery J
Decision:
Potential frustration of the grant of primary relief due to the need to provide for the first defendant is resolved upon her death in March this year. The plaintiff and the second defendant are jointly entitled to the net proceeds of the sale of the Port Kembla property after provision for Blaguna’s liabilities including the costs of these proceedings. Future sale of the Port Kembla property indicated. Order made that the first defendant pay 60% of the plaintiff’s costs of the proceedings. Claim for indemnity costs based on the plaintiff’s Calderbank letter of 4 November 2015 dismissed. Proceedings adjourned for the hearing of the executors’ motion for sale of the Port Kembla property.

Catchwords:
FINAL RELIEF – claim in proprietary estoppel over land upheld when the first defendant was alive – continuing contest between parties as to the form of final relief – in a subsequent judgment declaratory relief to give effect to the promise to the plaintiff declined due to the hardship that it would occasion to her – Court decided that an alternative remedy was appropriate but that remedy has not been quantified – first defendant has since died – what relief is now appropriate.

COSTS – outstanding issue of the appropriate costs orders as between the parties – parties each successful on separate contests at different hearings – whether a global costs order should be made to cover all hearings – if so, what overall costs order should be made in the circumstances.
CALDERBANK LETTER – plaintiff makes offer of settlement by way of Calderbank letter – whether it was not unreasonable of the defendants not to have accepted the offer – whether sufficient time allowed for acceptance of the offer – whether it has been demonstrated that the defendants would have been better off by accepting the offer – whether the offer adequately dealt with the position of the second defendant.
Legislation Cited: Civil Procedure Act 2005, s 98(4)(c)
Cases Cited: A v N [2012] NSWSC 549
Calderbank v Calderbank (1975) 3 WLR 586
Delaforce v Simpson Cook (2010) 78 NSWLR 483; [2010] NSWCA 84
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2) (2005) 13 VR 435; [2005] VSC 8298
Harli Retail Stores Pty Ltd v Hafaz [2007] NSWSC 427
Howard’s Storage Pty Limited v Haviv Holdings Pty Limited (2010) 182 FCR 84; [2010] FCAFC 5
Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa (No 2) [2007] NSWSC 568
Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344
Pollard v Baulderstone Hornibrook Engineering Pty Ltd (No 2) [2007] NSWSC 486
Smilevska v Smilevska [2015] NSWSC 1794
Smilevska v Smilevska (No. 2) [2016] NSWSC 397
Smilevska v Smilevska (No. 3) [2017]…

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: [2018] NSWSC 1847
Decision Date: 04 December 2018

CaseChat Overview and Summary

The case involved a claim in proprietary estoppel over a property by the plaintiff, Smilevska, against the first defendant, who has since passed away, and the second defendant. The High Court of Australia was tasked with determining the appropriate final relief and costs in light of the first defendant's death and the parties' ongoing dispute over the form of the relief. Additionally, the court had to consider the implications of a settlement offer made by the plaintiff via a Calderbank letter, and whether it was reasonable for the defendants to have rejected this offer.

The legal issues before the court were twofold. Firstly, the court had to decide what form of relief was appropriate given the first defendant's death and the unresolved question of the exact form of relief that would satisfy the proprietary estoppel claim. Secondly, the court had to determine the appropriate costs order between the parties, given that each party had been successful in different aspects of the case at various hearings.

The court found that the proprietary estoppel claim was valid, but because of the first defendant's death, the original relief could not be granted. Instead, an alternative remedy was considered appropriate, although its exact form had not been quantified. The court decided that a global costs order should be made to cover all hearings, taking into account the successes and failures of each party. Regarding the Calderbank letter, the court held that it was not unreasonable for the defendants not to have accepted the offer, considering the circumstances and the fact that the offer did not adequately address the position of the second defendant.

The court ordered that a global costs order be made to cover all hearings, reflecting the varying successes of the parties. The exact amount of the costs order was to be determined in further proceedings. The court also noted that the defendants were not unreasonable in rejecting the Calderbank offer, given the incomplete nature of the proposal and its failure to address the second defendant's position.

Orders