[2020] NSWSC 187

Gus Kak v Allison Sarah Kak (née Boman) [No 2]

Plaintiff/Cross-Defendant is to pay the costs of the First Defendant/Cross-Claimant of the proceedings

Catchwords

COSTS – First Defendant/Cross-Claimant succeeds – whether costs should follow the event – HELD – costs should follow the event

[1]
HIS HONOUR: On 26 February 2020, I gave judgment in the principal dispute: Gus Kak v Allison Sarah Kak (née Boman) [2020] NSWSC 140. Definitions used there are used here.
[2]
Allison succeeded. She seeks costs.
[3]
Gus seeks an order that each party pay their own.
[4]
Costs are in the discretion of the Court. The starting point, however, is that costs follow the event unless it appears to the Court that some other order should be made: Uniform Civil Procedure Rules 2005 (NSW) r 42.1.
[5]
Gus submits that the usual position should not pertain because:
[6]
I see no reason to depart from the rule that costs follow the event.
[7]
Gus may not have known about the will when he started the proceedings but he carried on with them when he did know about it.
[8]
The executor has the right to determine burial matters absent compelling, countervailing reasons. Gus’ concessions and offers of compromise, if anything, strengthened Allison’s case. Other cases are of little assistance because costs are determined on the circumstances of the case in hand.
[9]
The Plaintiff/Cross-Defendant is to pay the costs of the First Defendant/Cross-Claimant of the proceedings.