Background
This is the second judgment in proceedings concerning the burial of Debby Karen Kollin in the Orthodox Jewish section of Rookwood Cemetery. The deceased died on 30 April 2025. Her husband, Robert Thomas Kollin (first plaintiff and executor), and her brother, Victor Berk (second plaintiff), sought burial in an exclusive cemetery plot. The defendants were Metropolitan Memorial Parks Land Manager and Sydney Chevra Kadisha. In the first judgment, the court dismissed the plaintiffs’ summons and ordered costs to be determined separately.
The central issue in this judgment concerns whether the costs should be paid by the nominal plaintiffs or by a third party, Yankel Koncepolski, who was substantially involved in initiating and conducting the proceedings. Koncepolski was not formally a party but signed the costs agreement with the plaintiffs’ solicitors, gave instructions to counsel, advanced $5,000 to commence proceedings, and controlled communications with the legal representatives.
The Court’s Holding
Justice Slattery held that Koncepolski was the principal instigator of the proceedings, responsible for 75% of the defendants’ costs, while Victor Berk (the second plaintiff) bore 25% responsibility. The court rejected the defendants’ argument that Koncepolski should bear 100% of costs, finding that Berk, though overseas, had authorized the proceedings via text message to the solicitors and explicitly accepted the risk of costs liability. The court declined to award costs on an indemnity basis, finding insufficient “blameworthy conduct” or special circumstances, as the proceedings were conducted efficiently and alternative dispute resolution was not pursued by the defendants themselves.
The court ordered a lump sum costs award representing 70% of the defendants’ actual professional costs (including counsel fees) under Civil Procedure Act 2005, s 98(4)(c), to avoid the delay and expense of formal costs assessment. This approach was deemed fair and reasonable in light of the uncertainties inherent in formal assessment.
Key Takeaways
- Courts may order non-parties to pay costs if they initiate, control, or actively drive litigation and have a real and direct connection to the costs issues.
- Financial interest, control of litigation, giving instructions to lawyers, and funding proceedings are material factors in determining third-party cost liability.
- A nominal party cannot escape cost responsibility merely by claiming they were overseas; authorization and acceptance of cost risk matter.
- Lump sum costs orders under s 98(4)(c) can be made using a “broad brush” approach to avoid lengthy formal assessment, especially in sensitive or emotionally demanding cases.
- Indemnity costs are not warranted absent special circumstances such as flagrant breach of orders or unreasonable conduct unnecessarily prolonging proceedings.
Why It Matters
This judgment clarifies important principles in NSW costs law regarding third-party liability. It demonstrates that courts will look to the substance of who controls litigation, not merely who appears as a formal party. A non-party who funds proceedings, signs costs agreements, gives instructions, and manages the legal representation can be liable for costs even if the named plaintiffs remain technically liable as well. The decision reflects a practical approach: where proceedings are emotionally taxing for the parties and community-sensitive, courts may use lump sum orders to provide finality rather than prolonging disputes through formal costs assessment.
The case also illustrates the limits of third-party cost liability. Berk’s partial responsibility (25%) despite being overseas shows that geographical distance and reliance on intermediaries do not eliminate a party’s accountability when they have authorized proceedings in writing and accepted cost risks.