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.
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…
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- AGLC
- Stanojevic v Riboskic [No 2] [2020] VSCA 256
- Case
- [2020] VSCA 256
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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