Smilevska v Smilevska (No. 5) [2019] NSWSC 986

Supreme Court New South Wales

Medium Neutral Citation: Smilevska v Smilevska (No. 5) [2019] NSWSC 986 Hearing dates: 20 March, 7 May and 15 May 2019 Date of orders: 06 August 2019 Decision date: 06 August 2019 Jurisdiction: Equity Before: Slattery J Decision: See [86] of judgment. Catchwords: COSTS – specified gross sum instead of assessed costs – Civil Procedure Act, s 98(4)(c) – plaintiffs and second defendant are each partially successful in contested proceedings in relation to the ownership in equity of a domestic residence held in the name of the first defendant – the first defendant dies in the course of the proceedings – costs orders made that the defendants pay part of the plaintiff's costs – the residence is sold – the sale proceeds are available to be administered by Court order – the first defendant's case conducted by her attorneys and by a tutor – the proceeds of sale are the only likely source of funds to pay the parties' costs – no costs assessment has taken place – whether a specified gross sum order should be made instead of an award of assessed costs – if so, what is the appropriate amount of such a specified gross sum, in respect of the first defendant's costs, her tutor's and attorneys' costs and the plaintiff's costs – history of jurisdiction to make specified gross sum orders instead of assessed costs discussed – whether the plaintiff's costs should be deducted from the fund before it is distributed to the plaintiff and the first defendant. Legislation Cited: Powers of Attorney Act 2003, s 38(3) Civil Procedure Act 2005, s 98(4)(c) Uniform Civil Procedure Rules 2005, r 7.10(2)(a) Cases Cited: Australasian Performing Rights Assoc Ltd v Marlin [1999] FCA 1006 Beach Petroleum NL & Claremont Petroleum NL v Johnson (1995) 57 FCR 119 Clune, Re; Ex parte Verge v Isabella Nominees Pty Ltd (in liq) (1988) 14 ACLR 261 Edgar & Walker v Mead (1916) 23 CLR 29 Hadid v Lenfest Communications Inc [2000] FCA 628 Hardoon v Belilios (1901) AC 118 Harrison v Schipp (2002) 54 NSWLR 738 NSW Trustee & Guardian v Hull (No. 2) [2011] NSWSC 1361 Octava Investments Pty Ltd v Knight (1979) 144 CLR 360 Rajski & Anor v Computer Manufacture and Design Pty Ltd [1981] 2 NSWLR 798 MF Global Australia (in liq) (No. 2), Re [2012] NSWSC 1426 Silva v Czarnikow Limited (1960) 104 SJ 369 Smilevska v Smilevska [2015] NSWSC 1794 Smilevska v Smilevska (No. 2) [2016] NSWSC 397 Smilevska v Smilevska (No. 3) [2017] NSWSC 820 Smilevska v Smilevska (No. 4) [2018] NSWSC 1847 Starr-Diamond v Diamond (No. 4) [2013] NSWSC 811 Willmott v Barber (1881) 17 Ch D 772 Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (8th Ed, 2016, LexisNexis) G.E. Dal Pont, Powers of Attorney (2nd Ed, 2015, Lexis Nexis) Category: Costs Parties: Plaintiff/Applicant: Temjana Smilevska First Defendant: Blaguna Smilevska Second Defendant: Blagoja Smilevski First Cross Claimant: Mitre Sarafoski Second Cross Claimant: Gorica Sarafoska Representation: Counsel: