SZOMBATHY v The Public Trustee as Executor of the estate of Margit Lidia SZOMBATHY (Dec)

[2002] WASC 144

SZOMBATHY -v- THE PUBLIC TRUSTEE as Executor of the estate of MARGIT LIDIA SZOMBATHY (DEC) & ORS [2002] WASC 144

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 144
Case No:	CIV:1063/1998	Heard:	17 MAY 2002
Coram:	MASTER BREDMEYER	Delivered:	5/06/02
No of pages:	4	Judgment Part:	1 of 1
Result:	Application allowed
Category:	B
PDF Version

Parties:	LAJOS SZOMBATHY THE PUBLIC TRUSTEE as Executor of the estate of MARGIT LIDIA SZOMBATHY (DEC) ERZSIKE ILDIKO SZOMBATHY MARIKA ANIKO SZOMBATHY IBOLYA ENIKO SZOMBATHY MARGARET EMESE SZOMBATHY ANDRAS SZOMBATHY KATALIN SZOMBATHY
Catchwords:	Costs Special order Lifting the scale in an inheritance action Case went four days
Legislation:	Nil
Case References:	Szombathy v The Public Trustee as Executor of the estate of Margit Lidia Szombathy (Dec) & Ors [2002] WASC 89 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SZOMBATHY -v- THE PUBLIC TRUSTEE as Executor of the estate of MARGIT LIDIA SZOMBATHY (DEC) & ORS [2002] WASC 144 CORAM : MASTER BREDMEYER HEARD : 17 MAY 2002 DELIVERED : 5 JUNE 2002 FILE NO/S : CIV 1063 of 1998 BETWEEN : LAJOS SZOMBATHY

Plaintiff

AND

THE PUBLIC TRUSTEE as Executor of the estate of MARGIT LIDIA SZOMBATHY (DEC)
First Defendant

ERZSIKE ILDIKO SZOMBATHY
MARIKA ANIKO SZOMBATHY
IBOLYA ENIKO SZOMBATHY
MARGARET EMESE SZOMBATHY
Second Defendants

ANDRAS SZOMBATHY
Third Defendant

KATALIN SZOMBATHY
Fourth Defendant

(Page 2)

Catchwords:

Costs - Special order - Lifting the scale in an inheritance action - Case went four days

Legislation:

Nil

Result:

Application allowed

Category: B

Representation:

Counsel:

Plaintiff : Mr A J Klein
First Defendant : No appearance
Second Defendants : No appearance
Third Defendant : Mr D J McEvoy
Fourth Defendant : Mr D J McEvoy

Solicitors:

Plaintiff : Stephen Browne Lawyers
First Defendant : No appearance
Second Defendants : Galic & Co
Third Defendant : Tolson & Co
Fourth Defendant : Tolson & Co

Case(s) referred to in judgment(s):

Szombathy v The Public Trustee as Executor of the estate of Margit Lidia Szombathy (Dec) & Ors [2002] WASC 89

Case(s) also cited:

Nil

(Page 3)

1 MASTER BREDMEYER: This is an application dated 17 May by the third and fourth defendants for a special costs order in an inheritance action. These defendants seek that the costs payable by the plaintiff be taxed without regard to the monetary limitation imposed by item 21 of the Supreme Court scale and, secondly, that these defendants be granted a certificate for counsel attending with an instructing solicitor at the hearing of the originating summons.

2 This was an inheritance action which lasted four days and which resulted in an extempore judgment delivered on 18 April at the end of the evidence and arguments. The plaintiff recovered an award of $140,000. However, as a result of an O 24A offer made by these defendants on 19 July 1999 of $155,000, which was not accepted by the plaintiff, I made special costs orders on 22 April as follows:

"(1) No order as to costs on the third defendant's interrogatories.

(2) Costs of the second defendants be paid out of the estate.

(3) The third and fourth defendants do pay the plaintiff's party/party costs from the commencement of the proceedings until 16 August 1999.

(4) The plaintiff do pay the third and fourth defendants' party/party costs from 16 August 1999 to judgment (including the application with respect to costs) on a 50 per cent basis, to be taxed."

3 I delivered reasons for those costs orders in Szombathy v The Public Trustee as Executor of the estate of Margit Lidia Szombathy (Dec) & Ors [2002] WASC 89. My oral judgment awarding the sum of $140,000 to the plaintiff was transcribed, but not published.

4 Item 21 of the fourth schedule provides a fee of $15,000 for the hearing of an originating motion, originating summons or originating application. This inheritance application was commenced by originating summons. The fee of $15,000 expressly includes two days' preparation and one day's hearing for junior counsel and an allowance for getting up of 30 hours by a solicitor of senior partner status.

5 I consider this is an appropriate case to lift the scale. Item 21 envisages a one-day hearing, which is fair enough because many matters commenced by originating motion, originating summons or originating

(Page 4)

application only last one day. However, as this case lasted four days, I think it appropriate that the junior counsel involved, Mr Aristei, be given a further three days' counsel's fees under item 14(c) which is $2,300 a day. Given the size of the estate and the length of the hearing, I think it appropriate to allow a further one day's preparation for the counsel involved. The hours of preparation of the solicitor should be increased to 45 hours.

6 I do not propose to grant the application for a separate counsel's fee because I consider item 21 envisages a senior partner working in conjunction with a junior counsel, as happened in this case.

7 I note that much of the preparation in this case for the third and fourth defendants, who were the substantial defendants, came after the offer date of 16 August 1999. However, I note that the affidavit of the third defendant of 14 July 1998, of eight pages, his first affidavit, preceded that offer date. The defendants are to get no costs for that affidavit.

8 So I will lift the scale for the third and fourth defendants above the $15,000 fixed by item 21. These defendants are to get a further one day's preparation fee for counsel, a further three days' counsel's fees and a further 15 hours' preparation time for the senior partner. The costs of these defendants are, of course, subject to my special orders of 22 April 2002.

9 The plaintiff's counsel made an oral application for a similar lifting of the scale in relation to the plaintiff. This application will be refused. The plaintiff only gets his costs up to the offer date of 16 August 1999. The plaintiff had commenced the action and filed two affidavits dated 6 April 1998 of 24 pages and 20 August 1998 of 13 pages prior to that date. The vast bulk of the plaintiff's costs would have come after 16 August 1999, including the costs of running the trial in which the plaintiff engaged a junior barrister, Mr J Curthoys. The party/party costs incurred by the plaintiff prior to 16 August 1999 should not exceed $15,000.

10 The third and fourth defendants have succeeded in this application in lifting the scale. However, I consider they could have made this application earlier on when I heard argument on the effect of the O 24A offer, and, in those circumstances, there will be no order as to the costs of this application.