Stanojevic v Riboskic [No 2] - [2020] VSCA 256

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0002

MILOVAN STANOJEVIC (Executor of the Will and Estate of SLOBODAN STANOJEVIC deceased)	Applicant
v
MILICA RIBOSKIC (by her litigation guardian, James David Daly) [No 2]	Respondent

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JUDGES:	TATE, KAYE and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	28 September 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 256
JUDGMENT APPEALED FROM:	[2019] VCC 1764 (Judge Misso)

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COSTS – Appeal – Family Provision – Unsuccessful application for leave to appeal by executor – Whether applicant should pay costs of application for leave to appeal personally if estate exhausted – Whether applicant acted reasonably in bringing application for leave to appeal – Forsyth v Sinclair(No 2) (2010) 28 VR 635, considered.

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WRITTEN SUBMISSIONS:	Counsel	Solicitors
For the Applicant	Mr B Gillies	Zaicos Stantchev & Co
For the Respondent	Dr M Rush QC with Mr P Reynolds	McKean Park Lawyers

TATE JA
KAYE JA
EMERTON JA:

On 8 September 2020, the Court delivered judgment[1] dismissing an application for leave to appeal by Mr Milovan Stanojevic, executor of the will and estate of Slobodan Stanojevic (‘Stan’), against an order that provision in the amount of $550,000 be made for the respondent, Stan’s former domestic partner, under pt 4A of the Administration and Probate Act 1958. The primary judge also ordered that both the applicant’s and respondent’s costs of the trial be paid out of the estate with the respondent’s costs to be paid in priority to the applicant’s costs.
[1]Stanojevic v Riboskic [2020] VSCA 230.

Following the delivery of judgment by this Court, each of the parties has filed written submissions on the question of costs.

The orders sought by the respondent are, relevantly, as follows:

2.The respondent’s costs of the application for leave to appeal be paid on a standard basis out of the estate of Slobodan Stanojevic, deceased, in priority to any payment of the applicant’s costs (including the applicant’s costs of the trial) out of the estate.
3.For the avoidance of doubt, if any of the respondent’s costs in paragraph 2 cannot be paid out of the estate, they be paid by the applicant personally.

The parties agree that the respondent’s costs of the application for leave to appeal are to be paid from the estate in priority to any payment of the applicant’s costs, including the applicant’s costs of the trial. However, they disagree on whether there should be an order providing for the applicant to personally pay for any shortfall, should the estate not be large enough to cover the respondent’s costs of the trial and the application for leave to appeal.

The respondent submits that there are six reasons why, if the respondent’s costs of the trial and the application for leave to appeal cannot be met out of the estate, then the respondent should be entitled to recover those costs from the applicant personally:

(a) The respondent was wholly successful at trial and…

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 Riboskic [No 2]

Details

AGLC: Stanojevic v Riboskic [No 2] [2020] VSCA 256
Case: [2020] VSCA 256
Decision Date: 28 September 2020

CaseChat Overview and Summary

In Stanojevic v Riboskic [No 2], the respondent, Riboskic, applied to the court for costs in relation to an application for leave to appeal that had been dismissed. The applicant, Stanojevic, had sought leave to appeal against a decision that had dismissed his claim for family provision. The appeal was unsuccessful and the estate from which costs would ordinarily be paid was now exhausted. The primary issue before the court was whether Stanojevic should be personally liable for the costs of the application for leave to appeal. A further issue was whether Stanojevic had acted reasonably in bringing the application for leave to appeal.

The court considered the relevant authority on the matter, namely Forsyth v Sinclair (No 2). In that case, the court held that an applicant who was unsuccessful in an application for leave to appeal was only liable for costs if the application was frivolous or vexatious. The court found that Stanojevic’s application was not frivolous or vexatious, as it was not brought in bad faith and there was a reasonable prospect of success. The court held that Stanojevic should not be personally liable for the costs of the application for leave to appeal. The court noted that the application had been brought on the basis of a reasonable argument, and that it was in the interests of justice to allow the application to proceed without the risk of personal liability for costs.

Orders