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

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

With the first defendant now deceased, hardship considerations no longer frustrate the grant of primary proprietary estoppel relief. The plaintiff and the second defendant are jointly entitled to the proceeds of sale of the property, but only after satisfaction of all just estate liabilities, including legal costs. Costs are apportioned 60% in the plaintiff's favour against the first defendant given her substantial but not complete success; indemnity costs are refused as the Calderbank offer was not unreasonably declined and did not result in a better outcome for the applicant.

Jurisdiction
Australia
Judgment Date
04 December 2018
Procedural Posture
Equity; Consequential Orders / Final Relief and Costs Order After Multiple Judgments
Outcome
Alternative proprietary estoppel relief granted; costs apportioned; claim for indemnity costs dismissed; future directions for distribution and sale; proceedings adjourned for further consequential orders.
Legal Topics
['proprietary Estoppel' 'liabilities of Estate' 'costs Orders' 'calderbank Offer' 'conveyancing' 'declaratory Relief']
['equity' 'civil Procedure' 'costs'] ['proprietary Estoppel' 'liabilities of Estate' 'costs Orders' 'calderbank Offer' 'conveyancing' 'declaratory Relief']

Case Brief

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Procedural Posture

Equity; Consequential Orders / Final Relief and Costs Order After Multiple Judgments

Legal Issues

  1. 1 ['What is the appropriate form of final relief after the death of the first defendant?' 'What is the appropriate order for costs between the parties?' 'Should indemnity costs be awarded based on the rejection of a Calderbank offer?' 'How are proceeds of the Port Kembla property to be distributed given outstanding liabilities?']

Ratio Decidendi

With the first defendant now deceased, hardship considerations no longer frustrate the grant of primary proprietary estoppel relief. The plaintiff and the second defendant are jointly entitled to the proceeds of sale of the property, but only after satisfaction of all just estate liabilities, including legal costs. Costs are apportioned 60% in the plaintiff's favour against the first defendant given her substantial but not complete success; indemnity costs are refused as the Calderbank offer was not unreasonably declined and did not result in a better outcome for the applicant.

Court Disposition

Alternative proprietary estoppel relief granted; costs apportioned; claim for indemnity costs dismissed; future directions for distribution and sale; proceedings adjourned for further consequential orders.

Orders

  • ['Declare plaintiff and second defendant jointly entitled to the Port Kembla property (or proceeds), subject to estate liabilities.' "Order defendants pay 60% of plaintiff's costs." 'Dismiss claim for indemnity costs based on Calderbank letter.' 'Second defendant to bear own costs.' 'Net proceeds of sale to be held...