Stanojevic v Damnjanovic (Costs Ruling) - [2024] VSC 430

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2020 03616

BETWEEN:

GABRIELA STANOJEVIC & ORS (according to the attached Schedule)	Plaintiffs
and
PETAR DAMNJANOVIC (as Executor of the Estate of SVETOZAR STANOJEVIC, deceased) and KRISTINA DJUMIC	Defendants

---

JUDGE:	Tsalamandris J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers (written submissions from the plaintiffs and first defendant dated 8 July 2024, and written submissions from the second defendant dated 28 June 2024 and 16 July 2024)
DATE OF RULING:	25 July 2024
CASE MAY BE CITED AS:	Stanojevic v Damnjanovic & Anor (Costs Ruling)
MEDIUM NEUTRAL CITATION:	[2024] VSC 430

---

COSTS – Mixed success by plaintiffs – Costs follow the event – Only second defendant liable for plaintiffs costs, as she was the active contradictor – Plaintiffs to pay the first defendant’s costs as the plaintiffs unsuccessful in claim for lost rental income – No basis for second defendant to be compensated for costs – Order for vacant possession of property – Supreme Court Act 1986, s 24 – Supreme Court (General Civil Procedure) Rules2015, Order 63 – Civil Procedure Act 2010, Part 4.5.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr K Mihaly	Kingston Lawyers
For the First Defendant	Mr M Seelig	Destra Law
For the Second Defendant	In person

HER HONOUR:

Preliminary

On 21 June 2024, I delivered my reasons for judgment in this proceeding.[1] The proceeding related to a claim by the plaintiffs that a residential property in Hillside was held on trust for them, by the first defendant, Petar[2] Damjanovic, as the executor of the estate of Svetozar Stanojevic. The second defendant, Kristina Djumic, was the sole beneficiary of the estate, and denied the existence and/or enforceability of any such trust. I dismissed the plaintiffs’ claim for a declaration that the property was held on express trust for the benefit of the plaintiff grandchildren.[3] However I was satisfied that the property was held on a resulting trust – 25.77% for Gabriela Stanojevic, and 31.5% on trust for the estate of Zoran Stanojevic. In addition, I dismissed the plaintiffs’ claim that Petar had breached his duty as executor and trustee, for not obtaining rent from Kristina (the rental loss claim). At the conclusion of my judgment, I indicated that I would hear from the parties as to the precise form of orders to give effect to my reasons, and as to costs.
[1]Stanojevic v Damnjanovic & Anor [2024] VSC 350 (principal judgment).
[2]In this ruling, for clarity and without meaning any disrespect, I refer to the parties by their first names.
[3]In this ruling, I adopt the defined terms used in the principal judgment.

The parties were unable to agree on the terms of final orders and were invited to provide written submissions.

The plaintiffs sought a declaration as to the resulting trust, to give effect to my judgment. They sought the orders…

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.

Continue reading Stanojevic v Damnjanovic (Costs Ruling)

Details

AGLC: Stanojevic v Damnjanovic (Costs Ruling) [2024] VSC 430
Case: [2024] VSC 430
Decision Date: 25 July 2024

CaseChat Overview and Summary

In the case of Stanojevic v Damnjanovic, the plaintiffs sought a ruling on costs incurred in a property dispute. The plaintiffs, Stanojevic, were successful in their claim for vacant possession of a property, but unsuccessful in their claim for lost rental income. The defendants, Damnjanovic and another, contested the costs and the extent to which they should be liable. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was to determine the appropriate allocation of costs among the parties involved in the litigation. Specifically, the court had to decide which defendant, if any, was liable for the plaintiffs' costs and whether the plaintiffs should bear any of the defendants' costs given their partial success. The court also needed to decide whether there was any basis for compensating one defendant for the costs incurred by the other.

The court ruled that the second defendant was the active contradictor and therefore liable for the plaintiffs' costs, while the first defendant was not. The plaintiffs were ordered to pay the first defendant's costs as they were unsuccessful in their claim for lost rental income. The court found no basis for the second defendant to be compensated for the costs incurred by the first defendant. Finally, the court made an order for vacant possession of the property in favour of the plaintiffs.

The court's decision was guided by statutory provisions and rules, including the Supreme Court Act 1986, the Supreme Court (General Civil Procedure) Rules 2015, and the Civil Procedure Act 2010. The outcome of the costs ruling reflects the principle that costs generally follow the event, with the prevailing party in the litigation bearing the costs of the losing party. However, the court also considered the specific circumstances of the case, including the partial success of the plaintiffs, in determining the appropriate allocation of costs.

Orders