Stojanovski v Stojanovski (No 4)

[2021] NSWSC 800

Supreme Court

New South Wales

Medium Neutral Citation:

Stojanovski v Stojanovski (No 4) [2021] NSWSC 800

Hearing dates:

On the papers

Date of orders:

1 July 2021

Decision date:

01 July 2021

Jurisdiction:

Equity

Before:

Robb J

Decision:

The second defendant's application for orders for her costs of the proceedings is dismissed.

Catchwords:

COSTS — Party/Party — Self represented litigant — Where the second defendant sought costs orders against the bankrupt first defendant and in the alternative against the estate of his deceased mother on the basis that property vested in the first defendant’s trustees in bankruptcy should be treated as part of the estate — Where the second defendant had filed a submitting appearance — Where the second defendant had incurred costs in making an application for leave to apply for family provision relief out of time — Where the second defendant had not prosecuted the application for leave — Where otherwise no relief had been sought by or against the second defendant — Where the Court found that the second defendant was entitled to seek legal advice as to the significance of the steps being taken by other parties in the proceedings, but at her own cost — Where the Court dismissed the application for costs

Legislation Cited:

Succession Act 2006 (NSW)

Cases Cited:

Stojanovski v Stojanovski [2019] NSWSC 1713

Stojanovski v Stojanovski (No 3) [2020] NSWSC 1540

Category:

Costs

Parties:

Steven Stojanovski (plaintiff)
Robert Stojanovski (first defendant)
Jovanka Stojanovski (second defendant)
Jordan Stojanovski (third defendant)
Angelina Stojanovski (fourth defendant/cross-defendant)
Fabian Kane Micheletto (fifth defendant/first cross-claimant)
Michael Carrafa (sixth defendant/second cross-claimant)

Representation:

Counsel:
J Stojanovski (self) (second defendant)

Solicitors:
One Group Legal (plaintiff)
ICL Lawyers (fourth defendant/first cross defendant)
Polczynski Robinson (fifth and sixth defendants / first and second cross-claimants)

File Number(s):

2012/89349

Judgment

1. These reasons deal with an outstanding costs claim in these proceedings, being a claim by the second defendant, Jovanka, who was the plaintiff’s wife.

2. Jovanka's claim is dealt with at [235]-[256] of my reasons for judgment on the costs issue in these proceedings: see Stojanovski v Stojanovski (No 3) [2020] NSWSC 1540 (cost judgment).

3. In these brief reasons, I will assume knowledge of that judgment and in particular the reasons that related to Jovanka's application.

4. As stated at [255], I did not then dismiss Jovanka's costs claim, as she was self-represented, and there were a number of issues that had not properly been dealt with in her application for costs. I made an order giving Jovanka an opportunity to provide further submissions to the Court.

5. Jovanka took that opportunity by further written submissions dated 23 November 2020.

6. The only other additional submissions were those made on behalf of the trustees dated 7 December 2020. The trustees' submissions have been helpful to the Court, but they only related to one of the alternative costs orders sought by Jovanka.

7. With one exception, all of the costs orders sought by Jovanka were against Robert. Jovanka sought costs orders against Robert personally either on the indemnity or the ordinary basis. Jovanka then sought what were in effect the same costs orders, save that they were on a gross sum costs basis of $106,714.44, or alternatively $69,364.39.

8. The last of the alternative costs order sought by Jovanka was the only one that she did not seek against Robert personally. That was an order that Jovanka's costs on a gross sum basis of $69,364.39 be paid out of Nada's estate. Jovanka did not want those costs to be paid out of the only asset that actually remains in the estate, which is George, as Steven is entitled to that property. If the value of George were reduced by the amount of the costs sought by Jovanka, then the value of the matrimonial pool of assets owned by Jovanka and Steven would be reduced by that sum for the purposes of the outstanding family law proceedings.

9. Jovanka sought an order that her costs be paid out of Breakwell. As noted at [375] and [376] in the primary judgment in these proceedings on liability, Ward CJ in Eq made orders against Angelina which included an order that she transfer her interest in Breakwell to the trustees, so that the trustees now have a half interest in Breakwell: Stojanovski v Stojanovski [2019] NSWSC 1713. That is the reason why the trustees have made submissions in response to Jovanka's costs application, but only to resist Jovanka's claim in so far as she seeks an order that her costs be paid out of the estate, on the basis that Breakwell should be treated as remaining as an asset of the estate.

10. The trustees' submissions have augmented my understanding of the costs claim made by Jovanka as set out in the cost judgment, by pointing out that, on 19 June 2012, Robert filed a notice of motion that sought, by prayer 3, that Jovanka be joined as a second defendant to the proceedings, and that on 10 September 2012, Jovanka filed a submitting appearance, save as to costs. Robert’s application was made after Jovanka’s then solicitors had advised that Jovanka was prepared to be joined to the proceedings and that she would file a submitting appearance.

11. The trustees' submissions also elaborated on the application foreshadowed by Jovanka for leave to make an application for further family provision under s 59 of the Succession Act 2006 (NSW) in respect of Nada's estate.

12. On 10 September 2012, Jovanka filed a notice of motion by which she sought that leave. The motion was listed for hearing before Pembroke J for three days commencing on 29 October 2012. His Honour was told that Jovanka considered the claim made in her notice of motion as, in effect, a form of insurance against the loss by Steven of the testamentary agreement claim. His Honour was advised that Jovanka would be "most unlikely" to prosecute her application if Jersey was transferred to Stephen as a result of his success on the testamentary agreement claim.

13. Even though Jovanka was represented by counsel for the purpose of the hearing of her notice of motion, all that happened was that it was stood over and it has never been prosecuted. It is now too late for Jovanka, as a practical matter, to prosecute her application.

14. These circumstances have the effect that Jovanka must have incurred some substantial legal costs in commencing and preparing for a three-day hearing of her application to make a family provision claim out of time. The legal costs involved in that application did not lead to the making of any order that would entitle Jovanka to be paid her costs by any other party to the proceedings.

15. Although Steven ultimately succeeded on his claim to enforce the testamentary agreement against Robert, there is no reason why Jovanka is thereby entitled to any order that Robert pay any part of her costs. Jovanka was not called upon to take any part in the prosecution of Steven's testamentary agreement case, and she did not do so.

16. Consequently, there is no basis for the Court to make any costs order in favour of Jovanka against the estate that may give Jovanka an entitlement to enforce the costs order against Breakwell.

17. Jovanka's additional submissions have not dispelled the doubts that I expressed in the costs judgment about whether some of the costs referred to in the invoices related to the family law proceedings, and whether there had been some inadvertent double counting of her costs.

18. Apart from the costs that Jovanka may have incurred in relation to her notice of motion for leave to commence a family provision application out of time, it appears that Jovanka may have incurred relatively substantial costs in respect of her legal representatives executing a watching brief in respect of the proceedings. Jovanka was entitled, as a matter of her own choice, to seek legal advice as to the significance of the steps that were being taken by other parties in the proceedings, but if she did so, it was at her own cost. She had already filed a submitting appearance, so she could not look to any other party to pay her costs.

19. It is theoretically possible that some party may have been responsible for paying a relatively small amount of costs in respect of the filing of Jovanka’s submitting appearance and confirmatory advice that it was not appropriate for her to take an active part in the proceedings. However, Jovanka has not articulated or supported a costs claim of this nature.

20. Notwithstanding her further submissions, it is not appropriate for the Court to make any of the costs orders sought by Jovanka. The Court will make the following additional order:

1. The second defendant's application for orders for her costs of the proceedings is dismissed.

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Decision last updated: 01 July 2021