Menka Tasevska v Vlado (Larry) Tasevski & Anor [2011] NSWSC 411

Supreme Court New South Wales

Medium Neutral Citation: Menka Tasevska v Vlado (Larry) Tasevski & Anor [2011] NSWSC 411 Hearing dates: 29 March 2011 Decision date: 01 April 2011 Jurisdiction: Equity Division - Commercial List Before: Einstein J Decision: Order that each party is to pay their/its costs of the proceedings Catchwords: Costs Legislation Cited: Civil Procedure Act Uniform Civil Procedure Rules Cases Cited: Hillier v Sheather (1995) 36 NSWLR 414 Jones v Bradley (No 2)[2003] NSWCA 258 Jovanovski v Billbergia Pty Ltd (No 2) [2010] NSWSC 617 Leichhardt Municipal Council v Green [2004] NSWCA 341 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 Robb Evans of Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 South Eastern Sydney Area Health Service v King [2006] NSWCA 2 Category: Consequential orders Parties: Menka Tasevska (Plaintiff) Vlado (Larry) Tasevski (First Defendant) Susan Tasevski (Second Defendant) Representation: Ms M Tibbey (Plaintiff) Mr GM McGrath (Defendants) Creswick McCarthy (Plaintiff) Leo & Morrison (Defendants) File Number(s): 2009/00291312

Judgment

Costs 1The reserved judgment delivered on 17 March 2011 reserved the question of costs. 2The final paragraph of the reserved judgement read as follows : It is important to also make clear that it was indeed unfortunate that the plaintiff and her husband were not given the courtesy of being taken to an entirely independent solicitor. That circumstance should not be forgotten notwithstanding that the defendants had not been shown to have misled their parents. To my mind much of the conflicts and misunderstandings had their genesis because of the lack of courtesy and this will become one of the areas where the parties may address on costs 3The plaintiff contends and I accept that albeit that offers of compromise were relevant for the purposes of Rule 42.15, costs should follow the event, because it was not unreasonable for the plaintiff to reject the final Offer of Compromise. The litigation was finely balanced. The complexity and variety of factors to be considered in the exercise of the judicial discretion meant that the application of the judicial discretion was difficult to predict. The plaintiff should not be "punished" for that, in terms of costs. 4Section 98 of the Civil Procedure Act provides as follows: Courts powers as to costs (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. 5The Uniform Civil Procedure Rules amplify this section of the Civil Procedure Act . As stated in UCPR Rule 42.1 "General rule that costs follow the event". Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs."