Antova v Bokan (No 2) [2017] NSWSC 556

Supreme Court New South Wales

Medium Neutral Citation: Antova v Bokan (No 2) [2017] NSWSC 556 Hearing dates: 4 April 2017 Decision date: 08 May 2017 Jurisdiction: Equity - Family Provision List Before: Kunc J Decision: Gross sum costs order made Catchwords: COSTS – Whether gross sum costs order should be made – Whether should be payable forthwith and proceedings stayed pending payment – No issue of principle Legislation Cited: Civil Procedure Act 2005 (NSW) s 101 Uniform Civil Procedure Rules 2005 (NSW) Pt 42, r 42.7 Cases Cited: Hamod v State of New South Wales [2011] NSWCA 375 Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432 Category: Costs Parties: Radmila Antova (Plaintiff) Vase Antov (Second Plaintiff) Lidija Bokan (Defendant) Representation: Counsel: M Sahade (Plaintiffs) M J Heath (Defendant)

Solicitors: Oliveri Lawyers (Second Plaintiff) Matthews Folbigg Pty Ltd (Defendant) File Number(s): 2015/331929 Publication restriction: No

Judgment

Summary 1. This judgment resolves further costs consequences arising from the Court's judgment in Antova v Bokan [2016] NSWSC 115 (the "First Judgment"). These reasons should be read with the First Judgment. The defined terms in the First Judgment have the same meaning in this judgment. The appearances on the costs argument were the same as the earlier hearing before me: Mr M Sahade of Counsel appeared for Radmila and Vase. Lidija was represented by Mr M J Heath of Counsel. 2. The orders giving effect to the First Judgment included: "2. Order that pursuant to s 98(1)(b) of the Civil Procedure Act 2005 (NSW), that the Plaintiffs pay the Defendant's costs of the Second Plaintiff's Motion filed 24 January 2017 on an indemnity basis. … 5. Order that the Plaintiffs pay the Defendant's costs of the Notice of Motion filed 29 June 2016 on the: a. Ordinary basis up to and including 7 December 2016; and b. Indemnity basis on and from 8 December 2016. … 7. The Court notes that at 9.30 on 24 February 2017, the Defendant will make application (the Costs Motion Application): i. That the Motion Costs Orders be paid in a specified gross sum to be assessed by the Court pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW); ii. That following any order that the Motion Costs orders be paid in a specified gross sum, that the Plaintiffs pay those costs forthwith. iii. That the Second Plaintiff's Statement of Claim filed 16 September 2016 be stayed pending payment of any specified gross sum of the Motion Costs orders. iv. That to the extent that the Second Plaintiff does not pay any part of any specified gross sum assessed by the Court, the Defendant is authorised to deduct from the provision to the First Plaintiff set out the Family Provision Orders the amount of any shortfall not paid by the Second Plaintiff. v. That the Plaintiffs pay the Defendant's costs of the Costs Motion Application." 1. In these reasons, I shall refer to the costs in orders 2 and 5 just quoted as "Lidija's costs". Lidija's Costs Motion Application (see order 7 just quoted) raised four questions which, with the Court's answers, are: Question 1: Should a gross sum costs order be made in relation to Lidija's costs? Answer: Yes, in the sum of $91,180.02 (inclusive of GST). Question 2: Should Lidija's costs be payable forthwith? Answer: Yes by Radmila, but not by Vase. Question 3: Should Vase's statement of claim be stayed pending his payment of Lidija's costs? Answer: Does not arise. Question 4: How should the costs of the Costs Motion Application be resolved? Answer: Radmila and Vase should pay Lidija's costs of the Costs Motion Application assessed in the sum of $10,570 (inclusive of GST) and payable in the case of Radmila, but not Vase, forthwith. 1. In so far as he appeared for Radmila, Mr Sahade's resistance to the orders sought against her was, with no disrespect intended, not strenuous. It could not have been otherwise. Radmila's position in this litigation is now quite different to Vase's. By reason of the First Judgment, her involvement in the case is, for all intents and purposes, at an end. There is no reason why Radmila's obligation to pay Lidija's costs and her costs of the Costs Motion Application should not now be assessed on a gross sum basis and be payable forthwith. Furthermore, while Lidija should be free to enforce her costs orders against Radmila in whatever way she chooses, the Court is also satisfied that Lidija should have the benefit of a charge and an order for payment of her costs (including of the Costs Motion Application) out of Radmila's share of the deceased's estate. This last entitlement will only be of any real value if Vase's statement of claim is dismissed so that the deceased's house is part of the estate. 2. In relation to Vase, the Court is satisfied that his liability to pay Lidija's costs and the costs of the present Costs Motion Application should also be crystallised by a gross sum costs order. However, consistent with the Court's decision in paragraph [75] of the First Judgment that Vase should be given the opportunity to prosecute his statement of claim, in the exercise of its discretion the Court declines to order that Vase pay Lidija's costs forthwith or that his statement of claim be stayed pending payment of those costs by him.