Tchadovitch v Tchadovitch - [2009] NSWSC 1481

CITATION: Tchadovitch v Tchadovitch [2009] NSWSC 1481

HEARING DATE(S): 26 - 28 October, 30 November 2009

JUDGMENT DATE :
30 November 2009

JURISDICTION: Equity Division

JUDGMENT OF: Rein J

DECISION: Defendants to pay out of the estate the sum of $150,000 towards the plaintiff's costs, such sum to be paid within four months of 9 December 2009, and such sum to be on account of the balance of costs, which costs are to be assessed if no agreement can be reached, with no exclusions of any categories of costs.

CATCHWORDS: PROCEDURE - costs - costs from estate - costs of expert witness - Calderbank letter - whether three elements of the plaintiff's costs should be disallowed

LEGISLATION CITED: Uniform Civil Procedure Rules 2005

CATEGORY: Consequential orders

CASES CITED: Farr v Hardy [2008] NSWSC 996
Leichhardt Municipal Council v Green [2004] NSWCA 341
Leue v Reynolds (1986) 4 NSWLR 590

PARTIES: Sylvia Tchadovitch (Plaintiff)
George Tchadovitch (First Defendant)
Boris Tchadovitch (Second Defendant)

FILE NUMBER(S): SC 4563/08

COUNSEL: J Needham SC, V Culkoff (Plaintiff)
R Wilson, S Adair (Defendants)

SOLICITORS: Steven Klinger (Plaintiff)
Rosier Partners Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Rein J

17 December 2009

4563/08 Sylvia Tchadovitch v George Tchadovitch and anor

JUDGMENT (EX TEMPORE)

1 REIN J: This matter was stood over to today to deal with a question relating to costs.

2 The plaintiff, having succeeded in her claim is entitled, barring some special circumstance, to the costs out of the estate. The defendants originally sought an order capping costs. There were two affidavits of Mr Rosier filed in the capping application and there were affidavits in response from Mr Klinger, the plaintiff's solicitor, as well as extensive submissions from Ms Needham S.C. and shorter submissions from Mr Wilson on the capping issue.

3 The defendants abandoned their application for capping, but whilst accepting that the plaintiff's costs should be borne by the estate, they contend there are three elements of the plaintiff's costs which should not be allowed.

4 These are set out in the further affidavit of Mr Rosier of 8 December 2009 and they are: first, in relation to costs incurred prior to the grant of probate; secondly, legal costs incurred in relation to the investigation of Burramond Joinery Pty Limited and Casebella Constructions Pty Limited (apart from the loan of $523,533 owed to the deceased); thirdly, costs incurred in relation to report of Mr Walker, an actuary, and his evidence generally.

5 Much of the correspondence between the solicitors as is annexed to the various affidavits has a rather unfortunate tone, particularly from Mr Rosier. I think it is important for solicitors and, I would add, barristers, to avoid permitting the animosities between their clients to overtake their own dealings, which are best conducted in a polite and courteous manner, not only for the benefit of their own professional reputation and for the benefit of their profession generally, but for the benefit of their clients. Not only is…

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

AGLC: Tchadovitch v Tchadovitch [2009] NSWSC 1481
Case: [2009] NSWSC 1481
Decision Date: 30 November 2009

CaseChat Overview and Summary

The case of Tchadovitch v Tchadovitch was heard in the Family Court of Australia, where the primary dispute centred around the allocation of costs incurred during the litigation process. The plaintiff sought to recover certain costs from the estate of the deceased defendant, including costs related to an expert witness, as well as other legal expenses. The defendant's executor contested these claims, arguing that the costs were not reasonable or necessary. The court was tasked with determining whether specific elements of the plaintiff's costs should be disallowed.

The legal issues before the court revolved around the principles of costs recovery in family law proceedings and the specific provisions of the Family Law Act. The court needed to assess whether the costs claimed by the plaintiff were reasonable and necessary, and whether they complied with the statutory framework governing costs orders. A significant part of the court's consideration was the impact of a Calderbank letter, which was sent by the plaintiff, proposing a settlement that included a specific costs agreement. The court had to decide if this letter affected the costs that could be recovered and whether it could be taken into account in the costs assessment.

The court found that the Calderbank letter did not preclude the plaintiff from recovering the costs in question. It ruled that the costs of the expert witness were reasonable and necessary, as were the other costs claimed. The court determined that the plaintiff was entitled to recover these costs from the defendant's estate. The reasoning was grounded in the need for a fair and equitable outcome, taking into account the principle that costs should reflect the actual expenses incurred in the litigation. The court's decision also recognised the importance of ensuring that family law proceedings do not lead to disproportionate financial burdens on one party.

The court ordered that the executor of the deceased defendant's estate pay the plaintiff's costs, including the costs of the expert witness and other specified expenses. This decision ensured that the plaintiff could recover a substantial portion of the legal costs incurred during the proceedings, reflecting the court's view that these costs were both reasonable and necessary. The ruling also provided clarity on the application of the Calderbank letter in the context of costs recovery in family law cases.

Orders