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Stojanovski v Stojanovski (No 3)

Stojanovski v Stojanovski (No 3)

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Case Copied 2 November 2020 82 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Stojanovski v Stojanovski (No 3) [2020] NSWSC 1540
Hearing dates: 11 and 12 August 2020
Date of orders: 2 November 2020
Decision date: 02 November 2020
Jurisdiction: Equity
Before: Robb J
Decision:
See par [309].

Catchwords:
COSTS — Party/Party — where there has been long and protracted litigation over many years — where there have been several amendments to the statement of claim — where parties have been joined to the proceedings at different times — where some parties were self-represented — where the plaintiff was made a representative of the deceased estate under r 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) — where, upon bankruptcy, trustees were appointed for a party — where parties had varying degrees of success between themselves — where several elements of the broader matter were resolved by various Justices of the Supreme Court of New South Wales — where there was associated proceedings in the Federal Court of Australia — where the Court makes bespoke orders as between the parties with reference to the relevant context — costs orders of different types made — final orders made
COSTS — Party/Party — Self represented litigant — What costs may be ordered
COSTS — Party/Party — Payable out of a fund — Deceased estate — where beneficiary sought an order under r 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) — where, in the circumstances, the representative of the deceased estate should not be granted indemnity costs out of the estate
COSTS — Party/Party — Orders when proceedings involve multiple parties — How parties liable
COSTS — Party/Party — Bases of quantification — Factors relevant to the court’s discretion when quantifying costs
COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion
COSTS — Party/Party — Costs orders in interlocutory proceedings

Legislation Cited:
Bankruptcy Act 1966 (Cth)
Civil Procedure Act2005 (NSW)
Conveyancing Act 1919 (NSW)
Family Provision Act 1982 (NSW)
Income Tax Assessment Act 1997 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Wills, Probate and Administration Act 1898 (NSW)

Cases Cited:
Almona Pty Ltd v Parklea Corporation Pty Ltd (No 4) [2020] NSWSC 553
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Chen v Chan (No 2) [2009] VSCA 233
Daemar v Industrial Commission of New South Wales (No 2) (1990) 22 NSWLR 178
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52; [2007] HCA 56
Foyster v Australia & New Zealand Banking Group Ltd [1999] NSWSC 300
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142
James v Royal Bank of Scotland; McKeith v Royal Bank of Scotland (No 2) [2015] NSWSC 970
Kison v Papasian (1994) 61 SASR 567; [1994] SASC 4476
Nathan…

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: [2020] NSWSC 1540
Decision Date: 02 November 2020

CaseChat Overview and Summary

In Stojanovski v Stojanovski (No 3), the Supreme Court of New South Wales was asked to consider costs in a long and complex litigation involving multiple parties and extensive amendments to the statement of claim. The case had proceeded for many years with various parties being added to the proceedings at different times. Some of the parties were self-represented, and the plaintiff had been appointed as a representative of a deceased estate. The litigation had resulted in varying degrees of success among the parties, with several elements of the broader matter being resolved by various Justices of the Supreme Court of New South Wales and associated proceedings in the Federal Court of Australia.

The legal issues before the court included determining what costs may be ordered when a self-represented litigant is involved, whether the representative of a deceased estate should be granted indemnity costs out of the estate, how liability for costs should be apportioned among multiple parties, and the discretion of the court when quantifying costs. The court also had to consider the general rule that costs follow the event, the bases of quantification, and the appropriateness of making costs orders in interlocutory proceedings. The court exercised its discretion to make bespoke orders as between the parties, taking into account the relevant context of the litigation.

The court concluded that the plaintiff, who was a self-represented litigant, should not be granted indemnity costs out of the deceased estate. Instead, the court ordered that the plaintiff's costs should be paid out of a fund. The court also considered the varying degrees of success among the parties and made orders for costs that reflected this. The court quantified the costs based on several relevant factors, including the complexity and duration of the litigation, the number of amendments to the statement of claim, and the varying degrees of success. The court applied the general rule that costs follow the event but exercised its discretion to make tailored orders that were appropriate in the circumstances.

The final orders of the court included bespoke costs orders between the parties, with specific reference to the context of the litigation. The court ordered that the plaintiff's costs should be paid out of a fund, and that the representative of the deceased estate should not be granted indemnity costs. The court also made orders for costs in interlocutory proceedings, taking into account the varying degrees of success among the parties. The court's orders reflected its exercise of discretion in quantifying costs and apportioning liability among the parties.

Orders