Arambatzis v Foundas (No 2) - [2024] NSWSC 859

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Arambatzis v Foundas (No 2) [2024] NSWSC 859
Hearing dates: On the papers
Date of orders: 15 July 2024
Decision date: 15 July 2024
Jurisdiction: Equity
Before: Kunc J
Decision:
Gross sum costs order made

Catchwords:
COSTS – Party/party – Specified gross sum – no issue of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98(4)(c)

Cases Cited:
Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
Arambatzis v Foundas [2024] NSWSC 400
Foundas v Arambatzis (No 2) [2023] NSWSC 1329
Hamod v New South Wales [2011] NSWCA 375
Hancock v Rinehart (Lump Sum Costs) [2015] NSWSC 1640
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Latoudis v Casey (1990) 97 ALR 45, 50; [1990] HCA 59
Young & Young v Attorney General of New South Wales (No 2) [2024] NSWSC 705

Category: Costs
Parties: Peter Arambatzis (Plaintiff)
Cassiani Foundas (Defendant)
Representation:
Counsel:
D Barlin (Plaintiff)
C Foundas (Defendant – self-represented)
S Chen, Solicitor (Trustees)

Solicitors:
Cutri & Associates (Plaintiff)
William Roberts Lawyers (Trustees and Applicants)

File Number(s): 2018/184682

JUDGMENT

Summary

By a judgment delivered on 15 April 2024, the Court resolved two competing notices of motion concerning a property at Ashcroft of which the plaintiff, Mr Arambatzis and the defendant, his sister Ms Foundas are co-owners and to which Darke J had appointed Trustees for sale pursuant to s 66G Conveyancing Act 1919 (NSW): Arambatzis v Foundas [2024] NSWSC 400. Defined terms in the judgment have the same meaning in these reasons, which assume familiarity, and should be read with, the judgment.
In the judgment, pursuant to a motion filed by the Trustees on 19 January 2024, the Court granted leave for a writ to issue for possession of the property. It also dismissed a motion filed by Ms Foundas on 5 April 2024 which sought a stay of any writ pending an appeal which she has filed from a recent decision of Rees J.
When the judgment was delivered, the Court ordered the defendant “to pay the other parties' costs of both the trustees' notice of motion filed 19 January 2024 and the defendant's notice of motion filed on 5 April 2024, those costs as agreed or assessed to be payable in the first instance from the defendant's share of the net proceeds of sale of the land referred to in Order 2.”
Mr D Barlin, Counsel for the plaintiff, requested an opportunity for his client to make an application for a gross sum costs order on the ordinary basis. The Court then made directions for the exchange of submissions and evidence by the parties as to whether a gross sum costs order should be made and that the application would be dealt with on the papers.
In accordance with the Court’s directions, the plaintiff’s submissions were filed together with an affidavit from Mr Frank Cutri, solicitor for the plaintiff dated 29 April 2024 in support of the application.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arambatzis v Foundas (No 2)

Details

AGLC: Arambatzis v Foundas (No 2) [2024] NSWSC 859
Case: [2024] NSWSC 859
Decision Date: 15 July 2024

CaseChat Overview and Summary

The dispute between Arambatzis and Foundas was heard in the Supreme Court of New South Wales. The case revolved around a dispute regarding costs incurred during legal proceedings between the parties. The primary issue was whether the costs should be awarded on a party/party basis or if there was a specified gross sum involved. This case was a follow-up to an earlier decision, hence the "No 2" in the title.

The court had to determine whether the specified gross sum of costs should be awarded and if the matter involved an issue of principle. The central legal question was whether the specified gross sum of costs should be apportioned between the parties or if there was a need to consider the matter on a party/party basis. This distinction was crucial in determining the appropriate allocation of costs.

In delivering the judgment, the court found that there was no issue of principle involved in the specified gross sum of costs. Consequently, the court awarded the costs on a party/party basis. The court reasoned that the specified gross sum was not contentious, and therefore, there was no need to delve into a detailed party/party analysis. The decision was straightforward, focusing on the clear allocation of costs without raising any broader legal principles.

The final orders of the court confirmed that the costs were to be apportioned on a party/party basis. The specified gross sum of costs was deemed uncontentious, and thus, the court did not need to address any overarching legal issues. The judgment was concise, reflecting the straightforward nature of the case and the court's determination that no broader legal principles were at stake.

Orders