Frank John Pudarich v Anthony Pudarich; Milagros Discaya v Anthony Pudarich; Anthony Pudarich trading as on behalf of the Estate of the late Ivan Pudarich v Frank John Pudarich [2024] NSWSC 1123

Frank John Pudarich v Anthony Pudarich; Milagros Discaya v Anthony Pudarich; Anthony Pudarich trading as on behalf of the Estate of the late Ivan Pudarich v Frank John Pudarich [2024] NSWSC 1123

Frank and Michelle Pudarich were jointly liable on an ordinary basis for the costs of and occasioned by the Withdrawal Application, Removal Application and Adjournment Application, and the costs thrown away by the late adjournment, because those costs were caused by the conduct of the litigation and the late adjournment. A gross sum costs order was appropriate under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) because assessment would be disproportionate and inefficient, the evidence was sufficient to assess costs fairly using a broad brush approach, and Frank and Michelle Pudarich's conduct led to additional costs. The threshold for indemnity costs was not crossed.

Jurisdiction
Australia
Judgment Date
05 September 2024
Procedural Posture
Costs Application in Equity Proceedings / Determination of Costs Following Late Adjournment of Trial and Related Applications
Outcome
Gross sum costs orders made against Frank and/or Michelle Pudarich jointly, payable within 14 days, on an ordinary basis.
Legal Topics
['gross Sum Costs Order' 'costs Thrown Away by Adjournment' 'tutor Under the Uniform Civil Procedure Rules 2005 (nsw)' 'withdrawal of Counsel and Solicitor' 'family Provision' 'specific Performance' 'possession Proceedings']
['civil Procedure' 'costs' 'equity' 'succession'] ['gross Sum Costs Order' 'costs Thrown Away by Adjournment' 'tutor Under the Uniform Civil Procedure Rules 2005 (nsw)' 'withdrawal of Counsel and Solicitor' 'family Provision' 'specific Performance' 'possession Proceedings']

Case Brief

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Procedural Posture

Costs Application in Equity Proceedings / Determination of Costs Following Late Adjournment of Trial and Related Applications

Legal Issues

  1. 1 ['What costs orders should be made following the late adjournment of the trial listed for 26 August 2024.' 'What costs orders should be made in respect of the application for Michelle Pudarich to be removed as tutor for Frank Pudarich.' "What costs orders should be made in respect of the application for leave for Frank Pudarich's solicitor and counsel to withdraw from the proceedings." 'Whether a gross sum costs order should be made under s 98(4)(c) of the Civil Procedure Act 2005 (NSW).' 'Whether Frank and Michelle Pudarich should be jointly liable for the relevant costs.']

Ratio Decidendi

Frank and Michelle Pudarich were jointly liable on an ordinary basis for the costs of and occasioned by the Withdrawal Application, Removal Application and Adjournment Application, and the costs thrown away by the late adjournment, because those costs were caused by the conduct of the litigation and the late adjournment. A gross sum costs order was appropriate under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) because assessment would be disproportionate and inefficient, the evidence was sufficient to assess costs fairly using a broad brush approach, and Frank and Michelle Pudarich's conduct led to additional costs. The threshold for indemnity costs was not crossed.

Court Disposition

Gross sum costs orders made against Frank and/or Michelle Pudarich jointly, payable within 14 days, on an ordinary basis.

Orders

  • ['Frank and/or Michelle Pudarich jointly are, within 14 days, to pay the costs of and occasioned by the application on 20 August 2024 for leave for counsel and solicitor for Frank Pudarich to withdraw from the proceedings, the application of 21 August 2024 for Michelle Pudarich to be removed as tutor for Frank...