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

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

In the interests of justice, avoiding further cost to the limited fund, and exercising discretion under s 98(4)(c), the court ordered specified gross sum payment for legal costs of parties and representatives (with fixed sums or percentage discounts as outlined) to be deducted from the fund in a strict order of priority before the balance is distributed to Temjana and Blagoja in accordance with prior orders.

Parties
Plaintiff/applicant: Temjana Smilevska; First Defendant: Blaguna Smilevska; Second Defendant: Blagoja Smilevski; First Cross Claimant/tutor for First Defendant: Mitre Sarafoski; Second Cross Claimant/attorney for First Defendant/representing Estate: Gorica Sarafoska; Solicitors for First Defendant and Cross Claimants (on 7 May 2019): ER Solicitors
Jurisdiction
Australia
Judgment Date
06 August 2019
Procedural Posture
Costs Application in Equity Proceedings / Post Judgment, Determination of Costs and Distribution of Sale Proceeds
Outcome
Specified gross sum and priority costs orders made as detailed. Directions given for final calculations of distributions from fund.
Legal Topics
Costs, Specified Gross Sum Order, Administration of Estate, Priority of Payment From Fund
Equity Civil Procedure Costs Specified Gross Sum Order Administration of Estate Priority of Payment From Fund

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Parties

Temjana Smilevska

Plaintiff/applicant

Blaguna Smilevska

First Defendant

Blagoja Smilevski

Second Defendant

Mitre Sarafoski

First Cross Claimant/tutor for First Defendant

Gorica Sarafoska

Second Cross Claimant/attorney for First Defendant/representing Estate

ER Solicitors

Solicitors for First Defendant and Cross Claimants (on 7 May 2019)

Procedural Posture

Costs Application in Equity Proceedings / Post Judgment, Determination of Costs and Distribution of Sale Proceeds

Legal Issues

  1. 1 Whether specified gross sum orders should be made instead of assessed costs under Civil Procedure Act, s 98(4)(c)
  2. 2 The appropriate quantum of specified gross sum for various parties' costs
  3. 3 The order of priority for payment of costs out of the proceeds of sale of property

Ratio Decidendi

In the interests of justice, avoiding further cost to the limited fund, and exercising discretion under s 98(4)(c), the court ordered specified gross sum payment for legal costs of parties and representatives (with fixed sums or percentage discounts as outlined) to be deducted from the fund in a strict order of priority before the balance is distributed to Temjana and Blagoja in accordance with prior orders.

Court Disposition

Specified gross sum and priority costs orders made as detailed. Directions given for final calculations of distributions from fund.

Orders

  • Pay $103,945.49 from the Fund to Mitre and Gorica for legal costs as tutor and attorneys for first defendant and her estate.
  • Pay a sum (to be calculated per reasons) from the Fund to Messrs Sachs Gerace Broome for legal fees incurred by Blaguna and her estate.