Smilevska v Smilevska (No. 3) [2017] NSWSC 820

Smilevska v Smilevska (No. 3) [2017] NSWSC 820

The Court declined to make third party costs orders against Mitre and Gorica as their conduct as attorneys/tutor for Blaguna was bona fide and reasonable. They are entitled to indemnity from Blaguna's assets for their costs. No order was made as to costs between the plaintiff and the defendants at this stage, pending further submissions. The Court found hardship would result from granting the full declaratory relief initially sought by the plaintiff; instead, it will hear submissions on restitutionary remedies to balance equities and address Temjana's proprietary estoppel success.

Jurisdiction
Australia
Judgment Date
11 July 2017
Procedural Posture
Equity Proceedings / Post Judgment; Determination of Form of Final Relief and Costs
Outcome
Final relief in the form originally sought by plaintiff not granted; restitutionary remedy to be considered. Court declines to make third party costs order. Mitre and Gorica entitled to indemnity for their costs from first defendant's assets. No order as to costs between plaintiff and defendants, pending further...
Legal Topics
['proprietary Estoppel' 'declaration of Trust' 'costs' 'power of Attorney' 'guardianship']
['equity' 'trusts and Estates' 'civil Procedure'] ['proprietary Estoppel' 'declaration of Trust' 'costs' 'power of Attorney' 'guardianship']

Case Brief

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Procedural Posture

Equity Proceedings / Post Judgment; Determination of Form of Final Relief and Costs

Legal Issues

  1. 1 ["What form of final relief should be granted to give effect to the plaintiff's proprietary estoppel claim?" "Should the Port Kembla property be sold to meet the first defendant's liabilities?" 'Are third party costs orders appropriate against Mitre and Gorica?' "Should Mitre and Gorica have indemnity from Blaguna's assets for costs incurred as attorneys/tutors?" 'Which party bears costs as between plaintiff and defendants?']

Ratio Decidendi

The Court declined to make third party costs orders against Mitre and Gorica as their conduct as attorneys/tutor for Blaguna was bona fide and reasonable. They are entitled to indemnity from Blaguna's assets for their costs. No order was made as to costs between the plaintiff and the defendants at this stage, pending further submissions. The Court found hardship would result from granting the full declaratory relief initially sought by the plaintiff; instead, it will hear submissions on restitutionary remedies to balance equities and address Temjana's proprietary estoppel success.

Court Disposition

Final relief in the form originally sought by plaintiff not granted; restitutionary remedy to be considered. Court declines to make third party costs order. Mitre and Gorica entitled to indemnity for their costs from first defendant's assets. No order as to costs between plaintiff and defendants, pending further...

Orders

  • ['Parties to bring in short minutes of order to give effect to these reasons.' 'No third party costs order made against Mitre and Gorica.' "Mitre and Gorica entitled to indemnity from Blaguna's assets for costs." 'No order as to costs between plaintiff and defendants at this stage.']