Mikan v Velcic [2011] NSWSC 251 | Case summary

Judgment (8 paragraphs)

[1]

JUDGMENT 1HIS HONOUR: These are proceedings under the Family Provision Act 1982 ("the Act") even though that Act has been repealed, effective from 1 March 2009. Under clause 11(2) of Schedule 1 of the Succession Act 2006, the provisions of the Act: "continue to apply in relation to the estate of a person who dies before the commencement of this clause, in so far as they are not affected by the operation of this Part". That clause commenced on 1 March 2009: s 2(1) of the Succession Amendment (Family Provision) Act 2008 and Government Gazette No. 38 of 20 February 2009, page 1036. 2Ivan Mikan ("the deceased") died on a date between 25 and 27 September 2005. He was the father of Ivanka Mikan, the Plaintiff, and Miroslav Mikan. Ivanka sues by her tutor, Katica Mikan, who is her mother (a former wife of the deceased) for a family provision order under the Act. 3With no disrespect, or undue familiarity intended, I shall refer to each of the deceased's children and the tutor by her, and his, given name. 4The deceased left no Will. Letters of Administration were granted on 3 July 2009, by this Court, to Nikola Velcic, ("the Defendant"), the Attorney of Miroslav, for the use and benefit of Miroslav, limited until he shall apply for, and obtain, a grant. The Defendant is a solicitor. 5As a result of the intestacy, there is no dispute that, subject to the claim being made by Ivanka, the estate would be divided equally between her and Miroslav. 6In the Inventory of Property, a copy of which was placed inside, and attached to, the Letters of Administration parchment, the deceased's estate, in New South Wales, at the date of death, was disclosed as having an estimated, or known, value of $355,090. The significant asset of the estate was real estate, situated at Lidcombe ("the Lidcombe property") which was disclosed as having an estimated, or known, value of $350,000. The balance of the estate consisted of cash in the bank. Funeral expenses ($5,693) were disclosed. 7The Lidcombe property was sold in December 2009 for $366,000. Following completion of the sale, the Defendant invested $308,000 and retained $26,144 in his trust account. 8As at March 2011, the amount of $340,000, approximately, is held on behalf of the estate. 9At the date of his death, the deceased also owned a property in Croatia. The estimated value of that property, in January 2011, was 12,936 euros (about AUD$17,400). It is believed that the selling costs of that property will be about 5,000 euros (AUD$6,725), assuming a buyer can be found. 10The Defendant has suggested that the land in Croatia be transmitted to Miroslav, with an appropriate adjustment being made for Ivanka. It appears that Miroslav is content for this to occur. The attitude of Ivanka is unknown. 11In calculating the value of the estate available for distribution, the costs of the present proceedings must also be taken into consideration, since the Plaintiff, if successful, normally, will be entitled to an order that her costs be paid out of the estate of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs be paid out of the estate. 12Ivanka's costs of the proceedings are estimated to be $49,500, inclusive of counsel's fees, and disbursements. It is not clear from the affidavit of James Roskov, sworn 18 March 2011, whether those costs have been calculated on the indemnity basis, or upon the ordinary basis. 13The Defendant's costs and disbursements, including counsel's fees, calculated on the indemnity basis, are estimated to be $85,000. 14In the circumstances, and assuming that no order capping the costs of the proceedings is made, the net value of the actual estate, after payment of the costs of the proceedings, will to be no more than, perhaps, $220,000. 15The persons described as persons who are, or who may be, eligible persons, within the meaning of the Act, are Ivanka, Miroslav, and Katica. Miroslav's mother predeceased the deceased. Only Ivanka has made a claim under the Act, although Miroslav has served evidence going to his financial and material circumstances. 16In view of the size of the estate, and because Ivanka is a disabled person and because Miroslav lives in Croatia, the matter proceeded by reading affidavits, subject to objections that had been filed, and relying upon written, rather than oral submissions. There was no cross-examination of any witness and no argument about objections.

Principles 23In an application under the Act, the Court must determine whether the plaintiff is an eligible person; if so, whether the plaintiff has been left with adequate provision for his, or her, proper maintenance, education and advancement in life; and, finally, if not left with that provision, what, if any, provision (or further provision) ought to be made out of the estate for those purposes? 24The power of the Court to make an order under the Act is enlivened by the formation of an opinion that the disposition of the deceased's estate effected by his Will, or as a result of intestacy, is not such as to make adequate provision from his estate for the proper maintenance, education or advancement in life of the Plaintiff. 25No criteria are prescribed in the statute as to the circumstances that do, or do not, constitute "inadequate provision for the proper maintenance, education and advancement in life". 26The question is answered by an evaluation that necessarily takes the court to the provision actually made in the deceased's Will, or as a result of intestacy, on the one hand, and to the needs for maintenance and advancement in life of the eligible person on the other. It has conventionally been said that this involves a consideration of the relationship between the deceased, the eligible person and other relevant persons having similar claims for adequate provision to be made for them: see Goodman v Windeyer (1980) 144 CLR 490 at 496). 27"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". 28Recently, it has also been noted that 'proper maintenance' is not limited to the bare sustenance of a claimant (cf Gorton v Parks (1989) 17 NSWLR 1), but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility": Alexander v Jansson [2010] NSWCA 176 at [18]. 29Unless the court comes to the conclusion that inadequate provision has been made, it is not empowered to make an award. This is commonly referred to as "the jurisdictional question". 30If the court answers the jurisdictional question favourably to the applicant, the nature and quantum of the order that the court is then empowered to make is stipulated by s 7 as being an order that: "... in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person." 31In Singer v Berghouse (No2) [1994] HCA 40, the High Court described the two-stage approach that a court should take. At 209, it was said: "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Ltd . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." 32In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 ("Vigolo"), Gleeson CJ and Gummow and Hayne JJ at [5], [74] and [82] - [83] approved the two-stage test set out in Singer v Berghouse . 33It has recently been repeated by Campbell JA in Peter Robert Durham v Bruce Albert Durham & Ors [2011] NSWCA 62: "81 Under both the Family Provision Act and the Succession Act whether the jurisdictional question is satisfied is a matter of whether an evaluative standard has been met, rather than truly a matter of discretion. ... 82 A judge's decision as to the amount and type of an award to be made is a true discretionary decision, whether that decision is made under the Family Provision Act or under the Succession Act ." 34The provision to be made may be made in a variety of ways, including a lump sum, periodic sum or "in any other manner which the Court thinks fit": s 11 of the Act. The court, if it makes an order for provision, "may specify the beneficial entitlements in that estate which shall bear the burden of the provision and, in relation to each entitlement, the part of the burden it is to bear": s 13 of the Act. The court is empowered, at its discretion, to order that such provision as the court thinks fit is made out of the estate of the deceased for that purpose. An order takes effect as a codicil to the will, or where the deceased died intestate, in a will of the deceased person: s 14 of the Act. 35As Bryson J noted in Gorton v Parks at 6, it is not appropriate to endeavour to achieve a "fair" disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court's role goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance etc of an eligible applicant. 36In Vigolo , at [114], Callinan and Heydon JJ said: "[T]he use of the word "proper"... implies something beyond mere dollars and cents. It's use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a Court to have regard to a promise of a kind which was made here ...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 37And at [122] their Honours added: "... Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however, will never be conclusive. The age, capacities, means, and competing claims of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 38Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed). 39Tobias JA said: "42. There can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is the cause of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration to guard against the contingency to which I have referred." 40In Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 at [81]-[85], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]." 41In addition to the above principles, s 9(3) of the Act should not be forgotten because the matters referred to therein are relevant, not only in determining whether an order ought to be made, but also in determining the nature of the order which should be made. Section 9(3) provides: "In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration: (a) Any contribution made by the eligible person whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to: (i) the acquisition, conservation or improvement of property of the deceased person; or (ii) the welfare of the deceased person, including a contribution as a homemaker; (b) The character and conduct of the eligible person before and after the death of the deceased person; (c) Circumstances existing before and after the death of the deceased person; and (d) Any other matter which it considers necessary in the circumstances." 42The resources and needs of other claimants on the deceased's bounty are to be taken into account in determining a claim under the Act: Vigolo v Bostin at [122]; Foley v Ellis [2008] NSWCA 288 at [88] and [89]; Carey v Robson [2010] NSWCA 212 at [15]. 43In relation to a claim under the Act by an adult child of the deceased, the following matters should also be noted: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where he, or she, can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation ( McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801). (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia . (d) There is no obligation upon the deceased to have treated all of his, or her, children equally. In Carey v Robson; Nicholls v Robson [2009] NSWSC 1142, Palmer J commented: "57 The strongest ground for relief urged by Rosemary and Marion, though put somewhat obliquely, is that the provision made for them by the testator is vastly disproportionate to the provision made for Alan. One can understand the sense of grievance which one child may have at being treated by a parent differently from another child. Some may be tempted to think that great disproportionality of testamentary treatment in itself indicates some essential error in the testamentary process which requires amelioration under the Family Provision Act so as to achieve approximate equality between a testator's children. 58 That is not, of course, a position from which one can begin in this, or in any other case under the family provision legislation." (e) There is no the need for an adult child to show some special need or some special claim: McCosker v McCosker (1957) 97 CLR 566; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

Determination 44Claims for a family provision order present particular difficulties where the estate is small. Any provision made by the Court in favour of the applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims. 45In this case, there is no dispute that the Plaintiff, as a daughter of the deceased is an eligible person within the meaning of s 6(1)(b) of the Act. There is also no dispute that the proceedings were commenced within the time prescribed by the Act (eighteen months from the date of death of the deceased). 46In the events that happened, the estate of the deceased is divided equally between the only two persons who have a claim on his bounty. There is no suggestion that either had any closer relationship with him than the other, or that she, or he, directly contributed to the acquisition of his estate. 47I have earlier noted that Ivanka receives a pension. That fact is relevant to my considerations. Young J (as his Honour then was) in Parker v The Public Trustee (NSWSC, 31 May 1988, unreported) said: "In my view the attitude that the Court takes in this area of the law to this problem under the authorities appears to be as follows: (1) The object of the Act is to compel persons to make provision for their dependants and not throw the maintenance of dependants upon the public purse... (2) It is no answer to a claim that a deceased failed to make proper provision for his dependant that the dependant is entitled to a pension under the Social Security Act... (3) When making provision, a wise and just testator usually makes his will without regard to any means tested pension that a beneficiary may be able to receive... (4) A wise and just testator, however, when formulating his bequests, does take into account the income that the various beneficiaries would be receiving under superannuation or other pensions... (5) A testator has no duty to organise his affairs so that his beneficiaries receive the maximum benefit from his estate so long as he makes adequate provision for them... (6) It would be contrary to the policy of the Act for the Court to so make an order that there was thrown onto the public purse the support of a dependant to the advantage of a 'wealthy beneficiary'... (7) Where the estate is small and especially where there are a series of claimants on the testator's bounty, it may well be proper for the testator when making his will and the Court when framing its order to preserve a pension entitlement". 48In Thom v The Public Trustee (unreported decision of Master McLaughlin 2 April, 1992) it was said: "It seems to me that it would be totally unrealistic for the Court to approach the moral obligation of the deceased to make provision for... by disregarding the fact that for a period of 20 years before the deceased's death,... was in receipt of a pension from the State, and the fact that, to the extent of that pension, the deceased was relieved of the necessity to support... from his own funds. That being so, I do not see how, upon the death of the deceased, the moral obligation upon the deceased to make provision for... by will, could be approached without recognising the fact that... would be entitled to continue to receive such a pension." 49In Whitmont v Lloyd (Unreported decision of Bryson J, 31 July, 1995) his Honour said: "The protection of public funds from claims by indigent persons is not a purpose of Family Provision legislation but they are incidentally protected by the legislation, which was not an Act solely for the protection of private interests and serves public policy... In my opinion, the availability of age pensions and other social benefits is a circumstance which should be regarded, and particularly in smaller estates, it may be appropriate to leave an Applicant wholly or partly dependent on them or to mould the provision made so that their availability is preserved in whole or in part. The acceptance of benefits for which statute law provides is in every way legitimate, involves no social stigma and incurs no disapproval from the Court. It is not the Court's task to be vigilant, to throw burdens off public funds and onto private estates. Still it is true that the legislation has a public policy purpose and it is not appropriate that where there is wealth within the estate, it should be directed away from the less fortunate and successful of the eligible person so as to enhance their claims to social benefits and maximise the resources of others; the Court should not disregard the interest of the public in public funds, which can receive incidental protection from the workings of this legislation. Where wealth is available, it should be used to meet needs for maintenance, education and advancement of eligible persons. The significance of social benefits is related to the available resources ..." 50In Taylor v Farrugia [2009] NSWSC 801, Brereton J referred to a number of the authorities and concluded: "59 The Court's attitude to the eligibility for means tested pension benefits of eligible persons and beneficiaries varies, depending on the circumstances of the case. Ordinarily, a testator makes a will and provides for those who have a claim on the testator without regard to the claimant's eligibility for a pension. However, in a small estate where there are competing claims, a testator, and this Court on an application under the Act, may take into account the eligibility of a claimant for a pension as a means of deciding how such limited benefits as are available from the estate should be shared between claimants, and how those benefits might be structured. But this qualification to the principle that the burden of support should be borne in the first instance by an estate rather than by social security arises mainly, if not exclusively in smaller estates [ Parker v Public Trustee (1988) NSWSC, Young J, 31 May 1998; Whitmont v Lloyd (New South Wales Supreme Court, 31 July 1995, Bryson J, unreported); King v Foster (Court of Appeal, 7 December 1995, unreported) King v White [1992] 2 VR 417, 424; Shah v Perpetual Trustee Company [1981] 7 Fam LR 97 100; Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151; Chan v Tsui [2005] NSWSC 82]." 51In the case under advice, bearing in mind the size of the estate, I have no doubt that I am entitled to, and should, consider the pension entitlement of Ivanka. I note that Miroslav, at least currently, has no entitlement to a pension. 52I turn then to the first stage, which involves a question of fact, namely whether the provision (if any) made for Ivanka, as a result of intestacy, is inadequate for her proper maintenance, education and advancement in life. A factual finding of inadequacy is necessary in order to enliven the statutory power to make an order for provision: Collings v Vakas [2006] NSWSC 393 at [66] per Campbell J (as his Honour then was). 53In this case, there is no suggestion that Ivanka made any contribution, financial, or otherwise, to the building up of the deceased's estate. Miroslav appears to have made some contribution in carrying out some repairs and maintenance of the property in Croatia. The extent of the contribution is difficult to assess. 54It may be that each of Ivanka and Miroslav made an indirect financial contribution, if the deceased made no payment by way of child support, to her, or him. But this I do not know. 55There is no suggestion that there is any aspect of the character, or conduct, of either of Ivanka, or Miroslav, that is relevant to the determination of the first stage. 56To the extent that either party relies upon the conduct of the deceased in not maintaining a close relationship with her, or him, it must be remembered that the Act is not one that provides reparations for wrongful conduct by the deceased. Nor is it legislation to deal with the righting of moral wrongs of the relationship between the deceased and an applicant ( Robinson v Tame (Court of Appeal, 9 December 1994, unreported); Gibson v Haselgrove; Delmont v Haselgrove [2009] NSWSC 496 at [80]). 57Having regard to the familial relationship between each of his children and the deceased, taken with the size of the deceased's estate, the competing claim of Miroslav, and the lack of any evidence of Ivanka's "needs", which cannot be met out of her present income and the capital that she will receive on distribution of the estate, or that she has, I find that adequate provision for the proper maintenance or advancement in life of Ivanka has been made by the operation of the intestacy rules in relation to the estate of the deceased. Thus, I conclude that there was no failure, on the part of the deceased, to make adequate provision for Ivanka. Accordingly, her claim fails at the jurisdictional stage. That finding ends the matter and must lead to the dismissal of Ivanka's proceedings. 58However, even if I were wrong in coming to that conclusion, the same considerations, would, at the second stage, produce the result that, as a matter of discretion, I would not be satisfied that a family provision order ought to be made. 59The nature and the value of the deceased's estate, taken with the strength of the competing claim of Miroslav, are very important matters in coming to my conclusion. It seems clear that Katica provides what Ivanka needs, including security of accommodation and all necessary care. There is nothing to suggest that there are any other claims upon Katica's bounty. 60Miroslav, on the other hand, appears to have no one to assist him. Whilst he is not as dependent upon his aunt for financial assistance, his income is less than that of Ivanka, he has no real security of accommodation, and no assets of any kind. 61No doubt, if the deceased had possessed more when he died, he would have been bound to do more for each of his children. That is, no doubt, an unfortunate result so far as Ivanka is concerned, but it is one that comes about because of the limited confines of the available assets in this estate. 62I was reminded in my considerations of the comments of Bryson JA (with the concurrence of Ipp JA and Stein AJA) in Bladwell v Davis & Anor [2004] NSWCA 170: "11 As recurringly happens, it is not possible to meet all the claims on the testator's bounty which have been shown to exist. Determination whether there is power to make an order under the Family Provision Act 1982, and also what order should be made, requires the Court to have regard to the assets available for distribution; and the assets available are not sufficient to satisfy all proved needs and claims on the testator's bounty. There can be no truly satisfactory outcome for this litigation. No-one with a claim on the testator's bounty could receive adequate provision in relation to that person's needs except at the expense of making less than adequate provision available for some other such person. Complete success on the appeal would bring no more than an additional $60,000 in provision for the claimant, unless the Court of Appeal took a course which the claimant did not ask the Master to take, and decided to impose the burden of some or all of the provision on legacies given to the four other family members." 63In the circumstances, it is unnecessary to consider the nature of the orders that should be made, perhaps, except in relation to the real estate in Croatia. 64This is a case where the claim made by, or on behalf of Ivanka, will reduce the value of the estate by, at least, some costs of the Defendant. In view of her financial position, and her condition, subject to any submissions, I do not propose to make any order for her costs. 65It seems to me that the Defendant's costs should be paid. Before expressing a final conclusion on whether they should, and how the burden of those costs should be borne, it will, regrettably, be necessary to hear from the parties. I will hear submissions, including those on the quantum of the Defendant's costs, and the reasons why, in such a small estate, those costs should not be capped. 66An alternative which may be considered by the parties is for there to be no order as to the Defendant's costs, but that the land in Croatia should, by agreement, be transmitted to Miroslav, upon the basis that he will pay such of the Defendant's costs that are ordered to be paid. 67If the parties cannot reach agreement I shall also require submissions on the power to make an order in relation to the land in Croatia. However, bearing in mind the size of the estate, I would commend to the parties that no further costs should be incurred and that every effort should be made to find a way to practically solve the issue of costs and how the land in Croatia should be deal with. Orders 68I order that the Plaintiff's application be dismissed. I propose to publish these reasons and allow the parties 14 days to consider the outstanding issues. If they are unable to reach agreement I shall hear further argument.

Mikan v Velcic

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Judgment (8 paragraphs)

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