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Stojanovska v Stojanovski (No 2)[2019] QDC 198

Stojanovska v Stojanovski (No 2)[2019] QDC 198

DISTRICT COURT OF QUEENSLAND

CITATION:

Stojanovska v Stojanovski (No 2) [2019] QDC 198

PARTIES:

HRISTINA STOJANOVSKA
(applicant)

v

LJUBE STOJANOVSKI
(respondent)

FILE NO/S:

2106/17

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2019

JUDGE:

Barlow QC DCJ

ORDER:

  1. That provision be made for the proper maintenance and support of the applicant, Hristina Stojanovska, out of the estate of the late Velika Stojanovska, by the applicant being paid one half of the residual estate, after payment of all due and proper debts of the estate.
  2. One third of that residual estate, comprising that part to which Igor Stojanovski would be entitled under the deceased’s intestacy, be exonerated from the incidence of order 1.
  3. Declare that, as a consequence of orders 1 and 2, Igor Stojanovski will be entitled to one third of the residual estate and Ljube Stojanovski will be entitled to one sixth of the residual estate.
  4. The applicant’s reasonable costs of and incidental to the proceeding on the indemnity basis be assessed if not agreed and be paid out of the assets of the estate, but be limited to no more than $60,000.
  5. The administrator’s reasonable costs of and incidental to the proceeding on the indemnity basis, except for half his fees for attending the trial, his costs of briefing counsel and of counsel’s fees in respect of the trial of the proceeding (other than pre-trial advice), be assessed if not agreed and be paid out of the assets of the estate, but be limited to no more than $70,000 up to 13 September 2019.
  6. Ljube Stojanovski’s costs of and incidental to the proceeding on the indemnity basis up to and including 18 January 2019, be assessed if not agreed and be paid out of the estate, but be limited to no more than $35,000.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – PROCEDURE – ORDERS AND OTHER PROCEDURAL MATTERS – COSTS – GENERALLY

SUCCESSION – FAMILY PROVISION – PROCEDURE – ORDERS AND OTHER PROCEDURAL MATTERS – COSTS – OFFERS OF COMPROMISE

SUCCESSION – FAMILY PROVISION – PROCEDURE – ORDERS AND OTHER PROCEDURAL MATTERS – COSTS – whether parties’ costs should be paid out of the estate – where estate modest and costs high – whether recoverable costs should be limited

Legislation

Succession Act 1981 (Qld) s 41

Uniform Civil Procedure Rules 2009 (Qld) r 700A

Cases

Adkins v Adkins (No 2) [2009] TASSC 32, considered

Baker v Baker (No 2) [2019] QDC 140, applied

Cernaez v Cernaez (No 2) [2015] QDC 73, considered

Forsyth v Sinclair (No 2) (2010) 28 VR 635, applied

Manly v The Public Trustee of Queensland [2008] QCA 198, considered

Singer v Berghouse (1993) 114 ALR 521, considered

Stojanovska v Stojanovski [2019] QDC 142, related

Sweaney v Bailie [2017] QDC 295, applied

Tapp v Tapp (No 2) [2009] TASSC 62, considered

COUNSEL:

AD Stobie for the respondent

SOLICITORS:

Spranklin McCartney Lawyers for the applicant

Burns Law for the respondent

Gleeson Lawyers for the administrator

Introduction

  1. [1]
    This proceeding is an application for family provision, pursuant to s 41(1) of the Succession Act 1981.  I delivered judgment on the application on 21 August 2019, reserving the question of costs.[1] 
  1. [2]
    It now falls to me to determine how the parties’ costs should be dealt with; in particular, the extent to which the estate should bear those costs and whether any party should pay some or all of another party’s costs.

Relevant principles

  1. [3]
    Often, in family provision applications, the court will order that all parties’ costs of the proceeding be paid out of the estate. However, the court has a discretion and must consider all relevant factors in determining what is an appropriate order. Costs in such cases generally depend on the overall justice of the case.[2]
  1. [4]
    In awarding costs, the court may well be concerned that the costs incurred by and awarded to the parties ought bear a reasonable proportionality to the value of the estate and of the parties’ potential interests in it.[3]  The size of the estate is a relevant consideration.[4]
  1. [5]
    I respectfully adopt the warning of the Victorian Court of Appeal, that:

“…it is a matter of concern that in many family provision cases the amount available for distribution among the competing beneficiaries is significantly reduced by legal costs.  Parties should not assume that litigation can be pursued safe in the belief that costs will always be paid out of the estate.  Every effort should be made to resolve the dispute before costs get out of proportion.  …  where costs have been incurred unreasonably … they must be borne personally.”[5]

  1. [6]
    Factors relevant to determining how the costs of such a proceeding should lie include the size of the estate, the nature, respective strengths and bases of the competing claims, the parties’ conduct in the proceeding and any offers of settlement.[6]
  1. [7]
    A respondent in family provision applications may be ordered to pay the applicant’s costs, including on the indemnity basis, if the court considers that the respondent has acted unreasonably in defending the application.[7]
  1. [8]
    The factors relevant to the award of costs in a family provision application, including the principles relevant to making such an award, were discussed at some length by Judge Rosengren in a careful exposition of the law.[8]  I agree, with respect, with everything her Honour said and I gratefully adopt her Honour’s statement of the relevant principles.  I also have particular regard to rule 700A of the Uniform Civil Procedure Rules 2009, which her Honour discussed. 
  1. [9]
    I also note and, with respect, agree with the comment on that rule made by Judge McGill SC, that the whole point of the rule was to bury the idea that parties may engage in this type of litigation on the assumption that everybody’s costs on the indemnity basis will be paid out of the estate, more or less regardless of the outcome. I also agree with his Honour that, particularly in smaller estates, there is a particular obligation on the parties to litigate efficiently and to minimise the costs of the litigation.[9]
  1. [10]
    Finally, I also respectfully adopt the observation by Judge McGill SC that personal representatives should not approach litigation of this nature on the basis that as personal representatives they have an entitlement to all of their costs on the indemnity basis out of the estate, regardless of how the litigation is conducted.[10]  Additionally, in my view, professional personal representatives in particular have an obligation under the rules, as trustees and (where applicable) as officers of the Court, to minimise (so far as is reasonable in the circumstances) the costs of the administration of the estate, including litigation.

The costs of this proceeding

  1. [11]
    The proceeding commenced on 21 July 2016 in the Supreme Court. It included an application that letters of administration be granted. An order to that effect was made on 5 June 2017, appointing Paul Gleeson (a solicitor independent of the parties) as the administrator. The Supreme Court also ordered that the application for provision be remitted to this court. It ordered that the costs of the application to appoint the administrator be paid from the estate on the indemnity basis. Only Tina has had her costs of that application assessed; they amount to $10,069.[11]
  1. [12]
    In this case, as I indicated in my principal reasons, the estate is not large, having a value (excluding costs) of about $248,756.[12]  The administrator has recently updated that value and now estimates it to be $230,196.  Its actual value depends on the net return from the house that is the major asset and which has still not been sold.
  1. [13]
    For the purposes of my determination of how the costs should lie, each party has since provided a short outline of their estimated costs and how they are made up. Only the administrator has had those costs assessed.[13]  Those outlines indicate that the parties’ costs are:
  1. (a)
    Tina:  $106,299 (including $10,069 the subject of the Supreme Court’s order);
  1. (b)
    Ljube:  $73,468;
  1. (c)
    the administrator:  $74,640 plus outlays of $6,998.
  1. [14]
    The total of these costs is therefore $261,405; that is, 113.6% of the estimated value of the estate. That proportion demonstrates immediately that the costs incurred by the parties are grossly excessive, particularly having regard to the amount at stake.
  1. [15]
    The administrator effectively took a neutral stand as to the entitlements of the parties and Igor. I am informed that he took steps to attempt to administer the estate by, for example, attempting to persuade Tina (as a 1/10th co-owner of the house) to sell the house and, for that purpose, to reduce the asking price.  However, his only apparent role in the proceeding, until the trial, was to file a short affidavit in which he provided details of the assets and liabilities of the estate, as he saw them.  He filed that affidavit about a week before the trial began.  I accept that he also kept himself informed about the proceeding and, for that purpose, he read the parties’ affidavits.  I accept that he acted reasonably in taking those steps.
  1. [16]
    The dispute was principally between Tina and Ljube. Tina sought an order exonerating her brother, Igor’s, entitlement under the intestacy from the effect of her claim. However, to the extent that costs are awarded out of the estate, Igor’s interests will obviously be adversely affected.
  1. [17]
    On 18 December 2018, following an unsuccessful mediation and in an apparent attempt to bring the proceeding to an end and to save all parties the costs of preparing for and conducting a trial, the administrator made an offer to Tina to settle the proceeding. Ljube joined in that offer. In making the offer, the administrator noted that the costs of a trial would be likely to diminish the estate to less than $75,000. In essence, the offer was that Tina forego her claim for reimbursement of loan repayments and other expenses, the estate and Ljube forego making claims that Tina was liable for occupation rent, the estate pay Tina $50,000 and Ljube $100,000 and each party’s costs on the indemnity basis and the residue be distributed as to 2/3rds to Tina and as to 1/3rd to Igor. 
  1. [18]
    On 20 December 2019, Tina made her own offer to settle the proceeding. Neither the administrator nor Ljube accepted that offer. The administrator explained, in his evidence under cross-examination, that he approached the offer adopting a neutral position, considering that it was principally for Ljube to indicate if it was acceptable to him. I consider that to have been a reasonable approach by the administrator.
  1. [19]
    The essence of Tina’s offer was that the estate pay Tina’s costs fixed at $53,000 and Ljube’s costs fixed at $40,000, the estate forego its claim for occupation rent and pay Tina $63,235, as reimbursement for the estate’s share of the loan and other expenses that had been paid by Tina since her mother’s death, and a legacy of $50,000, and the residue be divided equally between Tina, Ljube and Igor. The offer allowed for payment of $18,861 for the administrator’s costs and a further $10,000 for his fees and expenses for the prior mediation and to effect the sale of the property and obtain final orders.[14]  The result, according to the letter containing the offer, would be that 1/3rd of the residual estate would be worth approximately $39,000 based on the then current estimate of the proceeds of sale of the premises.
  1. [20]
    Both offers required the sale of the house.
  1. [21]
    The trial was set down for 3 days, commencing on 20 June 2019. It proceeded for two days in that week and was then adjourned (through no fault of the parties) until 28 June for the final witness and addresses. Each of the parties and the administrator was represented by solicitors and counsel throughout the trial.

The parties’ submissions

  1. [22]
    Counsel appearing for Tina submitted that:
  1. (a)
    Tina was successful; a successful applicant for provision under the Act is normally awarded costs out of the estate on the indemnity basis and such an order should be made in favour of Tina;
  1. (b)
    alternatively, as Ljube did not accept Tina’s offer, Tina’s costs up to the date of expiry of that offer (18 January 2019) should be paid from the estate and Ljube should be ordered to pay Tina’s costs thereafter, also on the indemnity basis;
  1. (c)
    the administrator should be entitled to his reasonable fees (and, I infer, expenses) for administering the estate up to 18 January 2019 and thereafter his reasonable fees should be paid by Ljube, or alternatively from the estate;
  1. (d)
    Ljube should have no entitlement to costs and, by way of sanction, his share of the residual estate should be applied first to the costs that he is ordered to pay either Tina or the administrator.
  1. [23]
    The administrator did not make any submission about the parties’ costs.
  1. [24]
    Ljube submitted that:
  1. (a)
    Tina’s costs as estimated by her were far too high, disproportionate to the amount in the estate available for distribution and payment of costs, and unexplained; she should have her costs paid from the estate, but capped at $60,000;
  1. (b)
    he had acted reasonably throughout the proceeding, including by consenting to the administrator’s reasonable offer to Tina, which would have resulted in her receiving about $117,000,[15] whereas she will receive about $102,000 (including refund of loan outgoings) in the result, even if only her costs and those of the administrator were paid from the estate;
  1. (c)
    therefore he should have his costs paid from the estate, also capped at $60,000;
  1. (d)
    the administrator’s costs should be paid from the estate.

Tina’s costs

  1. [25]
    Tina has been successful in her application. In that circumstance, she might ordinarily be entitled to have her reasonable costs paid from the estate, or by the respondent.
  1. [26]
    It is relevant to compare her position under my judgment with her position under each of the offers. I shall first do so based on the administrator’s current estimate of the estate’s assets and liabilities excluding costs (apart from those already assessed in Tina’s favour). Although that may seem artificial, it seems to me to be a suitable starting point for a comparison. That estimate, after repaying Tina those sums that I have determined should be paid to her, leaves a net value of $230,196.83. No party contended that that estimate was incorrect.
  1. [27]
    Had no order been made, out of that net value Ljube would have received $150,000 plus 1/3rd of the balance, a total of $176,732.28; Tina would have received her refund of $79,637.10 (including $10,069.84 costs) and 1/3rd of the residual ($26,732.28), a total of $106,369.38; and Igor would have received $26,732.28.
  1. [28]
    Under my judgment, if no costs were ordered to be paid from the estate:
  1. (a)
    Tina would receive her refund of $79,637.10 (including $10,069.84 costs) and ½ of the net value ($115,098.41), a total of $194,735.51;
  1. (b)
    Igor would receive 1/3rd of the net value - $76,732.28; and
  1. (c)
    Ljube would receive 1/6th of the net value - $38,366.14.
  1. [29]
    Under the administrator’s offer, ignoring costs:
  1. (a)
    the residual value would have been $299,764.09, as Tina would receive no refund of the estate’s share of expenses of the property;
  1. (b)
    Ljube would have received $100,000;
  1. (c)
    Tina would have received $50,000, plus $99,842.73 (2/3rds of the residue of $149,764.09 after payment of the stated sums to her and Ljube), a total of $149,842.73; and
  1. (d)
    Igor would have received 1/3rd of the residue, comprising $49,921.36.
  1. [30]
    Under Tina’s offer, based on the administrator’s value of the estate:
  1. (a)
    Tina would have received $63,235.05 for the refund plus $10,069 costs, totalling $73,304.89, plus $50,000 “legacy”, plus 1/3rd of the residue of $86,829.04[16] ($28,943.01), a total of $152,247.90; and
  1. (b)
    each of Ljube and Igor would have received $28,943.01.
  1. [31]
    Taking account of costs as estimated (now) by each party and as estimated (in December 2018) by Tina, the results are far different. The parties’ estimated costs to date total $251,336.[17]  Therefore, the costs to date exceed the net assets in the estate by about $21,139.  If the shortfall were shared equally between the parties and the administrator ($7,046 each), under my judgment the result would be that Tina would be paid the debts of $79,635 and nearly all her costs, but no more; Ljube and the administrator would receive nearly all their costs and Ljube would receive no legacy; and Igor would receive nothing.
  1. [32]
    Finally, if one were to accept the amounts of all parties’ costs as at January 2018 estimated in Tina’s offer,[18] the results of the respective offers would have been that:
  1. (a)
    under the administrator’s offer, after deducting the costs and the payments to Tina and Ljube, there would be a residual of $31,203, to be shared as to 2/3rds by Tina ($20,802) and 1/3rd by Igor; Tina would therefore have received $133,871,[19] Ljube would have received $140,000 including costs, while Igor would have received $10,401;
  1. (b)
    under Tina’s offer, Tina would have received $198,960;[20] Ljube would have received $22,656 plus his costs of $40,000, a total of $62,656; and Igor would have received $22,656.
  1. [33]
    These various calculations demonstrate that, while I have not allowed for the payment to Tina of a legacy out of the estate, ignoring costs she has succeeded in substantially improving her position over either offer, while Ljube is worse off than he would have under the either offer. When one takes account of costs, then all parties are substantially worse off.
  1. [34]
    In the circumstances, subject to my discussion below about the overall level of costs incurred by all the parties, I consider that Tina is entitled to payment of her costs of the proceeding, on the indemnity basis, out of the estate.
  1. [35]
    However, I am very concerned at the amount of costs that she has incurred. I consider them to be excessive given the net value of the estate. This comment applies to her costs both before and since the offers were made. Also, the costs of her solicitors in obtaining the order appointing the administrator appear excessive.[21]
  1. [36]
    I respectfully adopt what was said by McMeekin J in Collett v Knox[22] and quoted by Judge Rosengren in Sweaney v Bailie at [35].  Parties and the profession have an obligation to treat this type of litigation particularly carefully where the estate is small (which this one always clearly was).  Litigation over such an estate cannot be given the “Rolls Royce” treatment.  This is particularly so where the costs will grossly affect the entitlement of a beneficiary whose claim is purportedly exonerated from the effects of the applicant’s claim, as was the case here.  The figures I have calculated demonstrate that Igor will receive nothing if I allow all the parties’ costs to be paid out of this estate.
  1. [37]
    It became apparent to me, during the trial, that neither Tina nor Ljube would concede that the other played any substantial role in the care of Velika during her later years. Each attempted to minimise the other’s role and to exaggerate her or his own. A great deal of documentary and oral evidence concerned this issue. If each had been prepared to concede the other’s involvement, then a large amount of non-party disclosure and evidence would have been unnecessary and it should have been possible to settle the proceeding much earlier.
  1. [38]
    In the circumstances, I consider that all parties’ costs have been increased by the unreasonable behaviour of both Tina and Ljube. I propose to cap each of those party’s costs to an amount that is more reasonable. Even then, the total costs will be out of proportion to the value of the estate and of each party’s interest in it.
  1. [39]
    Accordingly, I shall order that Tina’s costs be paid out of the estate on the indemnity basis, but to a maximum of $60,000.

Ljube’s costs

  1. [40]
    Ljube’s costs and outlays for the proceeding to date have been $76,143.69.
  1. [41]
    The outcome of this proceeding for Ljube is considerably worse than the offers made by and to him, when one takes account of costs. Given the views I have expressed above about both his and Tina’s intransigence in the conduct of the proceeding, I do not consider that he should have his entire costs of the proceeding out of the estate. However, he was primarily entitled to the bulk of the estate on Velika’s intestacy and was properly entitled to representation in the proceeding. This was a small estate and Tina had been living with her mother since Ljube left the family home, so there were reasonable grounds to consider there to be a real risk that the Court would consider that she should be entitled to a refund of the expenses of the estate that she had incurred and to a larger proportion of the residual estate. This has been proved to be the case, as I have indicated that she should be awarded substantially more than she would have received under the intestacy rules or her offer. Ljube should not be awarded any costs after that offer expired.
  1. [42]
    In the circumstances, Ljube’s costs of the proceeding, up until 18 January 2019 (when the offer lapsed), should be paid from the estate on the indemnity basis, to a maximum of $35,000. Thereafter, he should not be entitled to any costs from the estate, nor from anyone else.
  1. [43]
    As I have said, Tina submits that Ljube should be ordered to pay Tina’s costs of the proceeding since the offer lapsed. It is not clear whether the submission refers to her costs on the indemnity basis (to which she is entitled to be paid from the estate, subject to the cap I propose to impose) or on the standard basis. In addition, her counsel submitted that Ljube should be given a costs sanction[23] in the form of having his share of the estate used toward paying Tina’s costs.
  1. [44]
    Costs orders are not to be used as some form of punishment of a party. The “costs sanction” to which Jones J was referring is an order to pay costs, not some additional method of securing them. It would not be appropriate to make an order of the kind suggested, which would effectively comprise a form of garnishee. A party cannot obtain security in that form for costs that another party is required to pay.
  1. [45]
    If this proceeding were litigation of a commercial nature between a plaintiff and a defendant, where a defendant has not accepted a plaintiff’s offer and the plaintiff succeeds to an equal or better extent than the offer made, normally the plaintiff is entitled to the costs of the entire proceeding on the indemnity basis.[24]
  1. [46]
    In proceedings of this nature, those costs consequences do not necessarily follow, as often all parties’ costs are ordered to be paid out of the estate. However, they remain in the court’s discretion.
  1. [47]
    In my view, it is sufficient in this case that Ljube be limited to receiving from the estate his costs up to the expiration of Tina’s offer, subject to the limit that I have indicated.

Administrator’s costs

  1. [48]
    The administrator is a professional administrator (he is a solicitor). He is clearly entitled to have his reasonable costs of the administration, including of this proceeding, paid out of the estate on the indemnity basis. To that end, he is entitled to charge professional fees for his time. Nevertheless, his fees must be reasonable having regard to the work involved in the administration and the size of the estate. Where the principal disputants are represented and the other beneficiaries and creditors are appropriately protected, the administrator may properly take a minimalist role in a family provision application.[25]
  1. [49]
    During his cross-examination by counsel for Tina, the administrator agreed that he did not take a position actively to support or not support the offer that had been made on behalf of Tina. The following exchange then occurred between them:[26]

MR CONRICK:   All right.  Can I suggest to you that, given the position that you’ve adopted in the proceedings, that it was not necessary to brief counsel?I beg your pardon?

That it was not necessary to brief counsel;  you could have maintained a neutral position with [scil. – without] the necessity and expense of counsel?I had originally spoken with both parties about not attending the court hearing at all.

Okay.  And does that answer the question about whether it was necessary to instruct counsel?Well, now that I’m here.

HIS HONOUR:   Sorry, what was that?Now that I’m here, I don’t see why I’m not entitled to instruct counsel.

  1. [50]
    This exchange demonstrates that, until he was served with a notice to attend for cross-examination on his affidavit, the administrator had considered, and perhaps determined, not to attend the trial at all or, at most, to attend and indicate that he was taking a neutral role and, presumably, to tender his affidavit should one of the other parties not do so. He only briefed counsel, it appears, after he was served with that notice. He took the view that, “now that I’m here as a witness, I don’t see why I’m not entitled to instruct counsel.”
  1. [51]
    Through the proceeding, the administrator quite properly took a neutral stance. While he participated in the mediation and subsequently made the offer, he did not otherwise participate in the proceeding until filing his affidavit shortly before trial.
  1. [52]
    In my view, being required to attend for cross-examination while seeking to maintain that neutral stance did not justify him briefing counsel for the trial. The administrator could have attended for cross-examination as required and then left. As a professional administrator, he would have been entitled to charge for his time of attending and of preparing for his cross-examination. One might also consider that it was appropriate for him to remain there for the entire trial and to charge for his time in being there, taking the view that it may be proper to assist the Court if necessary and perhaps that he should protect the interests of creditors and Igor, should it become necessary.[27]  However, that did not justify the expense of counsel attending for the trial as well.  Even the issue of whether or not Tina should pay an occupation rent to the estate was sufficiently argued by counsel for Tina and Ljube and ultimately the administrator accepted that it was not a case suitable for an occupation rent.  I consider that it was unnecessary for the administrator to attend the whole trial.  It was certainly unnecessary for him to brief counsel.
  1. [53]
    I was informed from the bar table that the table of the administrator’s costs provided to me did not distinguish between the litigation costs and the other costs of administering the estate. I was also informed that the costs of the administration had been increased by the difficulty he had in selling the property, including because he could not persuade Tina, as co-owner, to reduce the asking price to meet the market. That, of course, makes it impossible for me to determine what his full costs of the litigation have been. However, the figures provided to me on his behalf show that the costs of his and counsel’s preparation for and attendance at the trial totalled about $28,708, of which counsel was $12,760. Given his neutral stance, I consider those costs to be excessive. I intend to limit his own fees for those steps to about half the sum incurred and to exclude counsel’s fees for the trial. I will allow $3,600 for counsel to provide advice before trial.[28]  Thus, for that period, I will allow a total of about $17,134.
  1. [54]
    In the circumstances, in my view the administrator’s costs of and incidental to the proceeding (as well, of course, as his costs of the general administration of the estate) should be paid out of the estate on the indemnity basis, except for half his fees for attending the trial, the costs of preparing and briefing counsel for the trial (other than the pre-trial advice to which I have referred) and counsel’s costs of appearing at the trial. Having regard to the costs he has incurred to date,[29] his costs of the administration and of the proceeding should be capped at $70,000 to the date of the hearing on costs.  Thereafter, of course, he will be entitled to further costs associated with selling the property and completing the administration.

Conclusions and other matters

  1. [55]
    As a final cross-check, I have calculated the parties’ entitlements having regard to my conclusions on costs. Of course, they will be subject to the actual amount received from the sale of the property and the administrator’s costs associated with effecting that sale and completing the administration.
  1. (a)
    Total costs to be paid out of the estate will be $165,000, which will leave only $65,197 available for future costs of administration and distribution.
  1. (b)
    Tina will receive the debts owed to her ($79,637) and ½ that net value ($32,598): a total of $112,235.
  1. (c)
    Igor will receive 1/3rd of the net value, $21,732.
  1. (d)
    Ljube will receive 1/6th of the net value, $10,866.
  1. (e)
    The administrator will be entitled to his costs to the trial, capped as above, and then further reasonable costs incurred since in the administration of the estate.
  1. (f)
    Each of Ljube and Tina will presumably have some obligation to pay their solicitors and counsel, which will no doubt reduce the net “benefit” to them of pursuing this litigation to the end.
  1. [56]
    In respect of each party’s costs, of course, whether allowed on an indemnity basis or calculated on the standard basis, that party’s costs must have been reasonably incurred. Apart from the costs of counsel for the administrator, I am not required to, nor can I, determine whether any particular item of the costs claimed by each party is reasonable. If they cannot be agreed then that would be a matter for appropriate assessment.
  1. [57]
    Finally, I note that these reasons, concerning costs alone, are longer than my principal reasons. They are an ample demonstration that, in this case, the costs tail has wagged the liability dog. It is unacceptable that this has occurred. Counsel for Ljube submitted that it is very difficult for parties, considering offers in this type of litigation, to assess what the likely outcome of the proceeding will be, because there is a substantial element of discretion involved in making the decision. I accept that may be the case, but there is a sufficient number of decided cases that can guide parties in these situations. Any doubt does not overcome the clear need for parties and their advisers to litigate only cases that are worth litigating and to find a way to compromise disputes, particularly over small estates. One potentially cost effective way would be to agree to a binding expert opinion (or determination) on the papers at a comparatively early stage of proceedings (or even before proceedings are commenced, if it could be arranged quickly enough). There is a sufficient number of counsel and solicitors experienced in this type of litigation who could no doubt produce such an opinion efficiently and cost effectively. I would commend such processes to parties in future cases, particularly those involving smaller estates.
  1. [58]
    Unless parties take effective steps to settle disputes such as this quickly and efficiently, as a number of judges have now made clear, parties and their legal advisers may find that they will not be indemnified for their costs, even if successful.
  1. [59]
    As I indicated at the end of my principal reasons, I shall now make the orders I proposed then, as well as making the orders on costs that I have indicated above.

Footnotes

[1]Stojanovska v Stojanovski [2019] QDC 142.  As I did in my principal reasons, in these reasons I will refer to the family members by their given names. 

[2]Singer v Berghouse (1993) 114 ALR 521, at 522.

[3]Cernaez v Cernaez (No 2) [2015] QDC 73, at [52]-[58].

[4]Manly v The Public Trustee of Queensland [2008] QCA 198.

[5]Forsyth v Sinclair (No 2) (2010) 28 VR 635, at [27].

[6]Adkins v Adkins (No 2) [2009] TASSC 32, at [7]-[8]; Tapp v Tapp (No 2) [2009] TASSC 62, at [7].

[7]For example, Tapp v Public Trustee [2009] TASSC 62.

[8]Sweaney v Bailie [2017] QDC 295.  Judge McGill SC recently agreed with her Honour, in Baker v Baker (No 2) [2019] QDC 140, at [2].

[9]Baker, at [4]-[5].

[10]Baker, at [12].

[11]The administrator has had his costs of the administration as a whole assessed, but of course they began after his appointment.  Ljube’s costs up to then have been estimated at $17,119, which seems excessive given that he was not the applicant for the appointment.

[12]That figure is based on the estimated values at trial.

[13]I have no indication whether the assessor considered whether each item of costs was in fact reasonably incurred, which is a relevant factor in assessing costs, even on the indemnity basis.

[14]In fact, by then the administrator’s costs had amounted to approximately $35,874.

[15]Using the figures in my principal reasons at [71]. 

[16]Taking the administrator’s recent value but not deducting the liabilities listed, its value is $313,133.93.  Deducting from that sum $10,000 to the administrator for costs and the mediator’s fee, $10,069.84 for Tina’s assessed costs, $63,235.05 for the expenses refundable to Tina as she proposed, $93,000 for the proposed costs of the parties and $50,000 payable to Tina as proposed, leaves a residual of $86,829.04.

[17]Treating Tina’s costs already assessed as a debt to be repaid, as I have in my principal reasons at [71].

[18]Administrator $25,561 ($18,861 + $10,000 - $3,300 mediator’s fee), Tina $53,000 (again not counting the costs constituting a debt), Ljube $40,000 – a total of $118,561.  In fact, the breakdown of costs provided to me by each party after trial demonstrates that, to the date of expiry of Tina’s offer, the administrator’s costs were in excess of $18,473, Tina’s were $59,957 and Ljube’s were $37,310.

[19]$50,000 “legacy” + $53,000 agreed costs +$10,069 past costs + $20,802 residual.

[20]$50,000 “legacy” + $53,000 agreed costs +$10,069 past costs + refund $63,235 + $22,656 residual.

[21]$14,663.

[22][2010] QSC 132 at [174].

[23]Relying for that term on a passage by Jones J in Underwood v Underwood [2009] QSC 107 at [33].

[24]For example, Uniform Civil Procedure Rules 1999, rule 360.

[25]See [10] above.

[26]T1-67:44 to T1-68:9.

[27]Although that was unlikely, given that the only creditor other than Tina was a mortgagee and Igor’s interest was exonerated from Tina’s claim.

[28]I take this figure from the first item in counsel’s invoice dated 21 June 2019: part of PWG-5 to Mr Gleeson’s affidavit filed on 4 September 2019.

[29]A table provided to me shows that they total $81,639, including outlays.

Close

Editorial Notes

  • Published Case Name:

    Stojanovska v Stojanovski (No 2)

  • Shortened Case Name:

    Stojanovska v Stojanovski (No 2)

  • MNC:

    [2019] QDC 198

  • Court:

    QDC

  • Judge(s):

    Barlow DCJ

  • Date:

    11 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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