TROJA v TROJA [NO 2] [1994] NSWCA 321

TROJA v TROJA [NO 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and MEAGHER JJA 17 December 1993 and 15 April 1994, 11 May 1994

[1994] NSWCA 321

COSTS — cross appeal — judge applies forfeiture rule to disentitle wife beneficiary under will from taking in her deceased husband's estate following homicide of husband — orders that Public Trustee's costs come out of husband's estate — following appeal by wife to Court of Appeal, mother (alternative beneficiary) files cross appeal contending that costs should be borne primarily by wife — cross appeal not disposed of in orders made by Court in appeal — following further argument — held: (by the Court). the cross appeal should be dismissed (per Kirby P) because upon the view he favoured the appeal should have been allowed and the costs of the trial should abide the outcome of a new trial, (per Mahoney JA and Meagher JA): because the order providing for costs was discretionary and no error had been shown in the exercise of the discretion to warrant its disturbance.

ORDERS Cross appeal dismissed with costs.

Kirby P On 29 March 1994 the Court published reasons and pronounced orders in these proceedings.

On 11 April 1994, the solicitor for the respondent (cross appellant) wrote to the Registrar contending that the Court had not dealt with his client's cross appeal. Whilst acknowledging that I referred to the cross appeal at 32 of my reasons, he said:

"So far as I can see, neither Mahoney JA nor Meagher JA referred to my client's cross appeal at all.

The solicitor asked that the matter be taken up with the Court and stated:

"Tt seems lo me that it is unnecessary to relist the matter as it has been fully argued and all that remains is the Court's decision on my client's cross appeal."

The matter was relisted to permit the parties to make any submissions, or additional submissions. which they wished. Further submissions were put. Counsel for the appellant (cross respondent) offered no additional argument in relation to the cross appeal. However, he asked for the costs of the application.