Smilevska v Smilevska (No. 5) - [2019] NSWSC 986

Supreme Court

New South Wales

Medium Neutral Citation: Smilevska v Smilevska (No. 5) [2019] NSWSC 986
Hearing dates: 20 March, 7 May and 15 May 2019
Date of orders: 06 August 2019
Decision date: 06 August 2019
Jurisdiction: Equity
Before: Slattery J
Decision:
See [86] of judgment.

Catchwords: COSTS – specified gross sum instead of assessed costs – Civil Procedure Act, s 98(4)(c) – plaintiffs and second defendant are each partially successful in contested proceedings in relation to the ownership in equity of a domestic residence held in the name of the first defendant – the first defendant dies in the course of the proceedings – costs orders made that the defendants pay part of the plaintiff’s costs – the residence is sold – the sale proceeds are available to be administered by Court order – the first defendant’s case conducted by her attorneys and by a tutor – the proceeds of sale are the only likely source of funds to pay the parties’ costs – no costs assessment has taken place – whether a specified gross sum order should be made instead of an award of assessed costs – if so, what is the appropriate amount of such a specified gross sum, in respect of the first defendant’s costs, her tutor’s and attorneys’ costs and the plaintiff’s costs – history of jurisdiction to make specified gross sum orders instead of assessed costs discussed – whether the plaintiff’s costs should be deducted from the fund before it is distributed to the plaintiff and the first defendant.
Legislation Cited: Powers of Attorney Act 2003, s 38(3)
Civil Procedure Act 2005, s 98(4)(c)
Uniform Civil Procedure Rules 2005, r 7.10(2)(a)
Cases Cited: Australasian Performing Rights Assoc Ltd v Marlin [1999] FCA 1006
Beach Petroleum NL & Claremont Petroleum NL v Johnson (1995) 57 FCR 119
Clune, Re; Ex parte Verge v Isabella Nominees Pty Ltd (in liq) (1988) 14 ACLR 261
Edgar & Walker v Mead (1916) 23 CLR 29
Hadid v Lenfest Communications Inc [2000] FCA 628
Hardoon v Belilios (1901) AC 118
Harrison v Schipp (2002) 54 NSWLR 738
NSW Trustee & Guardian v Hull (No. 2) [2011] NSWSC 1361
Octava Investments Pty Ltd v Knight (1979) 144 CLR 360
Rajski & Anor v Computer Manufacture and Design Pty Ltd [1981] 2 NSWLR 798
MF Global Australia (in liq) (No. 2), Re [2012] NSWSC 1426
Silva v Czarnikow Limited (1960) 104 SJ 369
Smilevska v Smilevska [2015] NSWSC 1794
Smilevska v Smilevska (No. 2) [2016] NSWSC 397
Smilevska v Smilevska (No. 3) [2017] NSWSC 820
Smilevska v Smilevska (No. 4) [2018] NSWSC 1847
Starr-Diamond v Diamond (No. 4) [2013] NSWSC 811
Willmott v Barber (1881) 17 Ch D 772
Texts Cited: J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia (8th Ed, 2016, LexisNexis)
G.E. Dal Pont, Powers of Attorney (2nd Ed, 2015, Lexis Nexis)
Category: Costs
Parties: Plaintiff/Applicant: Temjana Smilevska
First Defendant: Blaguna Smilevska
Second Defendant: Blagoja Smilevski
First Cross Claimant: Mitre Sarafoski
Second Cross…

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: [2019] NSWSC 986
Decision Date: 06 August 2019

CaseChat Overview and Summary

The case of Smilevska v Smilevska (No. 5) involved a complex dispute over the ownership in equity of a domestic residence, with the residence held in the name of the first defendant. The plaintiffs sought to establish their claim to the property, and the first defendant passed away during the proceedings. The second defendant was also involved in the contest. The primary issue before the court was whether to make a specified gross sum order for costs instead of an award of assessed costs, given that the sale proceeds from the residence were the only likely source of funds to pay the parties’ costs.

The court considered the history and jurisdiction to make specified gross sum orders instead of assessed costs. It noted the Civil Procedure Act, section 98(4)(c), which allows for such an order if it is just to do so. The court found that given the circumstances, including the death of the first defendant and the lack of a costs assessment, a specified gross sum order was appropriate. The court also deliberated on the appropriate amount of such a sum, taking into account the costs incurred by the first defendant’s tutor and attorneys, as well as the plaintiffs’ costs. Ultimately, the court decided on a specified gross sum to be paid from the proceeds of the sale.

In its reasoning, the court considered the fairness of deducting the plaintiffs' costs from the fund before it was distributed to the parties. After careful deliberation, the court decided that the plaintiffs' costs should not be deducted from the fund before distribution. The court made a specified gross sum order, detailing the amounts to be paid to cover the costs of the first defendant's tutor and attorneys, and the plaintiffs' costs. The final orders were made to ensure that the costs were fairly distributed from the proceeds of the sale of the residence.

Orders