Smilevska v Smilevska (No. 4) [2018] NSWSC 1847

Supreme Court New South Wales

Medium Neutral Citation: Smilevska v Smilevska (No. 4) [2018] NSWSC 1847 Hearing dates: 4 December 2017 and 13 April 2018 Date of orders: 04 December 2018 Decision date: 04 December 2018 Jurisdiction: Equity Before: Slattery J Decision: Potential frustration of the grant of primary relief due to the need to provide for the first defendant is resolved upon her death in March this year. The plaintiff and the second defendant are jointly entitled to the net proceeds of the sale of the Port Kembla property after provision for Blaguna's liabilities including the costs of these proceedings. Future sale of the Port Kembla property indicated. Order made that the first defendant pay 60% of the plaintiff's costs of the proceedings. Claim for indemnity costs based on the plaintiff's Calderbank letter of 4 November 2015 dismissed. Proceedings adjourned for the hearing of the executors' motion for sale of the Port Kembla property. Catchwords: FINAL RELIEF – claim in proprietary estoppel over land upheld when the first defendant was alive – continuing contest between parties as to the form of final relief – in a subsequent judgment declaratory relief to give effect to the promise to the plaintiff declined due to the hardship that it would occasion to her – Court decided that an alternative remedy was appropriate but that remedy has not been quantified – first defendant has since died – what relief is now appropriate.

COSTS – outstanding issue of the appropriate costs orders as between the parties – parties each successful on separate contests at different hearings – whether a global costs order should be made to cover all hearings – if so, what overall costs order should be made in the circumstances.