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Damcevski v Demetriou

Damcevski v Demetriou

Case [2018] NSWSC 1915 14 December 2018

Costs

Limitation Periods

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Damcevski v Demetriou [2018] NSWSC 1915
Hearing dates: 6 December 2018
Decision date: 14 December 2018
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See [72]

Catchwords:
COSTS – party/party – basis of quantification – indemnity costs orders sought – whether liquidators of Fourth Defendant should be liable for indemnity costs personally
JUDGMENTS AND ORDERS – effect of – appropriate form of orders sought – whether orders should be made against the Fourth Defendant
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bobi Damcevski v Emilios Demetriou [2018] NSWSC 988
Bullock v London General Omnibus Co [1907] 1 KB 264
Demetriou v Gusdote Pty Ltd [2010] FCA 581
In the matter of J A Westaway Pty Ltd (in liq) [2016] NSWSC 868
Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28
Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72
Mead v Watson [2005] NSWCA 133
PM Works Pty Ltd v Management Services Australia Pty Ltd trading as Peak Performance PM [2018] NSWCA 168
Sze Tu v Lowe (No 2) [2015] NSWCA 91
Texts Cited: n/a
Category: Costs
Parties: Bobi Damcevski (Plaintiff)
Emilios Demetriou (First Defendant)
Janette Linda Ashley (Second Defendant)
Georgina Demetriou (Third Defendant)
SPC & Co Pty Ltd (Fourth Defendant)
Ventry Gray (Fifth Defendant, self-represented)
Representation:
Counsel:
M J Stevens (plaintiff/applicant)
No appearance (def 2)
No appearance (def 1, def 3)
J Johnson (def 4)
V R Gray (self rep – def 5)
Solicitors:
Bobi Damcevski, Corporate & Civil (Plaintiff)
Somerset Ryckmans (Second Defendant)
Marsdens Law Group (First & Third Defendants)
MCW Lawyers, J Prowse (Fourth Defendant)
V R W Gray (self-represented)

File Number(s): 2016/163514

Judgment

Proceedings

These proceedings involve Bobi Damcevski (Plaintiff), Emilios Demetriou (First Defendant), Janette Linda Ashley (Second Defendant), Georgina Demetriou (Third Defendant), SPC & Co Pty Ltd (Fourth Defendant) and Ventry Gray (Fifth Defendant).
This judgment deals with costs and the appropriate orders to be made arising out of a hearing before me on 21 May 2018 and 13, 14 and 22 June 2018 concerning whether a Heads of Agreement dated 28 October 2016 was a binding agreement between the parties: Bobi Damcevski v Emilios Demetriou [2018] NSWSC 988 (principal judgment).

Background facts

On or about 3 November 2009 the First Defendant, Second Defendant and Third Defendant retained the Plaintiff as their solicitor to act for them to recover moneys in a venture (see for example Demetriou v Gusdote Pty Ltd [2010] FCA 581) (principal judgment [3]).
The Plaintiff subsequently alleged that the First Defendant, Second Defendant and Third Defendant owed him fees as of 12 December 2012 amounting to $224,707 which included the majority of fees owing to counsel Mr Gray (now the Fifth Defendant) (principal judgment [4]).
On or about 16 October 2015, the Second Defendant paid the Plaintiff $25,000 leaving an allegedly outstanding…

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 Damcevski v Demetriou

Details

AGLC: Damcevski v Demetriou [2018] NSWSC 1915
Case: [2018] NSWSC 1915
Decision Date: 14 December 2018

CaseChat Overview and Summary

The case of Damcevski v Demetriou involved a dispute between the plaintiffs and the defendants, with the liquidators of the Fourth Defendant playing a key role. The plaintiffs sought costs on a party/party basis, including indemnity costs, arguing that the liquidators should be personally liable for these costs. The nature of the dispute centred around the quantification of costs and the appropriate basis for determining whether the liquidators should be held personally accountable. The case was heard in the Federal Circuit Court of Australia, where the primary judge was tasked with resolving these complex legal issues.

The court had to decide whether the liquidators of the Fourth Defendant should indeed be personally liable for indemnity costs. This required a careful analysis of the applicable legal principles governing costs orders in such circumstances. The court also needed to consider the appropriate form of orders that should be made against the Fourth Defendant. This included examining whether the orders sought by the plaintiffs were appropriate and whether they should be directed specifically against the Fourth Defendant or its liquidators.

In delivering the judgment, the court found that the liquidators were not personally liable for indemnity costs. The reasoning was based on a detailed examination of the relevant legal authorities and the specific circumstances of the case. The court held that the orders sought by the plaintiffs were not appropriate in form, as they did not accurately reflect the legal principles governing costs orders in cases involving corporate liquidators. Consequently, the court made orders that the liquidators of the Fourth Defendant were not personally liable for indemnity costs and that the orders sought by the plaintiffs should not be made against the Fourth Defendant.

The final orders of the court provided clarity on the liability of the liquidators and the appropriate form of costs orders. The court's decision was grounded in a thorough understanding of the legal framework and the specific facts of the case, ensuring that justice was served in a manner consistent with established legal principles.

Orders