Smilevska v Smilevska (No. 5)

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.