Milosevska v Milosevski [2019] NSWSC 711

Milosevska v Milosevski [2019] NSWSC 711

Given the plaintiff is ordinarily resident outside Australia, with no assets in the jurisdiction, is impecunious, and is pursuing a family provision claim with weak prospects, and the defendant having made a compliant offer of compromise not accepted by the plaintiff, it is just for the plaintiff to provide security for the defendant's costs. However, as the plaintiff cannot provide security, the proper course is to dismiss the proceedings and order costs against the plaintiff, reflecting both ordinary and indemnity bases consistent with UCPR and the offer of compromise rules.

Parties
Plaintiff/respondent: Pece Milosevski; Defendant/applicant: Trajanka Milosevska
Jurisdiction
Australia
Judgment Date
04 June 2019
Procedural Posture
Family Provision Application (equity) / Interlocutory Application for Security for Costs; Final Orders on Dismissal
Outcome
Plaintiff's claim dismissed by consent; costs orders made in favour of defendant.
Legal Topics
Security for Costs, Family Provision, Notional Estate, Dismissal of Proceedings, Costs Orders
Civil Procedure Succession Law Costs Security for Costs Family Provision Notional Estate Dismissal of Proceedings Costs Orders

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Parties

Pece Milosevski

Plaintiff/respondent

Trajanka Milosevska

Defendant/applicant

Procedural Posture

Family Provision Application (equity) / Interlocutory Application for Security for Costs; Final Orders on Dismissal

Legal Issues

  1. 1 Whether security for costs should be ordered against the plaintiff, a non-resident claimant, in family provision proceedings
  2. 2 Whether the proceedings should be stayed or dismissed upon failure to provide security
  3. 3 Appropriate orders for costs upon agreement to dismissal, in context of an offer of compromise

Ratio Decidendi

Given the plaintiff is ordinarily resident outside Australia, with no assets in the jurisdiction, is impecunious, and is pursuing a family provision claim with weak prospects, and the defendant having made a compliant offer of compromise not accepted by the plaintiff, it is just for the plaintiff to provide security for the defendant's costs. However, as the plaintiff cannot provide security, the proper course is to dismiss the proceedings and order costs against the plaintiff, reflecting both ordinary and indemnity bases consistent with UCPR and the offer of compromise rules.

Court Disposition

Plaintiff's claim dismissed by consent; costs orders made in favour of defendant.

Orders

  • The Plaintiff pay the Defendant's costs of the notice of motion filed on 6 May 2019.
  • The whole of the proceedings be dismissed.