Foundas v Arambatzis (Gross Sum Costs Order) - [2025] NSWCA 208

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Foundas v Arambatzis (Gross Sum Costs Order) [2025] NSWCA 208
Hearing dates: 8 September 2025
Date of orders: 8 September 2025
Decision date: 08 September 2025
Before: Kirk JA
Decision:
The costs of the first respondent which are payable by the first and second applicants by order of the Court of Appeal made on 17 September 2024 are fixed in the gross sum of $16,000, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), which sum is payable in the first instance from the first applicant’s share of the net proceeds of the sale of the property at issue in the proceedings.

Catchwords:
CIVIL PROCEDURE – Costs orders – Applicant seeking gross costs assessment pursuant to section 98(4)(c) of the Civil Procedure Act 2005 (NSW) – Assessed gross sum of $16,000

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(4)(c)
Legal Profession Uniform Law (NSW), ss 194(1), 206

Cases Cited:
Foundas v Arambatzis (No 3) [2023] NSWSC 1513
Foundas v Arambatzis (No 6) [2024] NSWCA 231
Gabrielle v Abood (No 4) [2023] NSWCA 100

Category: Costs
Parties: Cassiani Foundas (First Applicant)
Bill Foundas (Second Applicant)
Peter Arambatzis (First Respondent)
Sean Magnus Wengel (Second Respondent)
Robert William Whitton (Third Respondent)
Representation:
Counsel:
Second Applicant (Self-represented)
T Harris-Roxas (First Respondent)
Solicitors:
Not applicable (Applicants)
Cutri & Associates (First Respondent)
William Roberts Lawyers (Second and Third Respondents)

File Number(s): 2024/4529
Decision under appeal

Court or tribunal:

Supreme Court of New South Wale

Jurisdiction:

Equity – Commercial List

Citation:

[2023] NSWSC 1513; [2023] NSWSC 1648; [2024] NSWSC 400

Date of Decision:

06 December 2023

Before:

Rees J; Kunc J

File Number(s):

2021/297960; 2018/184682

JUDGMENT

The first respondent (Peter Arambatzis), by notice of motion, seeks a gross sum order in relation to a costs order made by this Court on 17 September 2024. On that date the Court dismissed the motion of the applicants seeking a stay of execution of a writ of possession of a property of which the first applicant (Cassiani Foundas) and first respondent were registered proprietors as tenants in common: Foundas v Arambatzis (No 6) [2024] NSWCA 231. The Court ordered that the applicants pay the costs of the motion. The current motion for a gross sum costs order was filed almost a year ago on 26 September 2024. No procedural steps were taken in relation to that motion until June this year due to an administrative oversight. The first respondent did not take any further action to agitate or pursue the motion until relatively recently.
The motion was then listed on 23 June 2025, which listing was vacated. On 24 June 2025, the Registrar listed the motion for hearing on 30 June 2025, directing the parties to file and serve any evidence and written submissions by midday on 27 June 2025. That listing was also vacated, and the matter was listed for directions the following week; the first respondent was directed to…

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.

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Details

Case: [2025] NSWCA 208
Decision Date: 08 September 2025

CaseChat Overview and Summary

The applicant sought a gross sum costs order under section 98(4)(c) of the *Civil Procedure Act 2005* (NSW) against the first and second respondents. The dispute concerned the costs payable by the first and second applicants to the first respondent, following an order made by the Court of Appeal on 17 September 2024.

The primary legal issue before the Court was whether to fix the costs payable by the applicants to the first respondent in a gross sum, as permitted by section 98(4)(c) of the *Civil Procedure Act 2005* (NSW). This section allows for the assessment of costs in a gross sum in certain circumstances, rather than requiring a detailed itemised assessment.

Kirk JA determined that the costs of the first respondent, which were payable by the first and second applicants, should be fixed in the gross sum of $16,000. This sum is to be paid in the first instance from the first applicant’s share of the net proceeds derived from the sale of the property that was the subject of the proceedings.

Orders

Orders of the court

The costs of the first respondent which are payable by the first and second applicants by order of the Court of Appeal made on 17 September 2024 are fixed in the gross sum of $16,000, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), which sum is payable in the first instance from the first applicant’s share of the net proceeds of the sale of the property at issue in the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Foundas v Arambatzis (Gross Sum Costs Order) [2025] NSWCA 208
Hearing dates:	8 September 2025
Date of orders:	8 September 2025
Decision date:	08 September 2025
Before:	Kirk JA
Decision:	The costs of the first respondent which are payable by the first and second applicants by order of the Court of Appeal made on 17 September 2024 are fixed in the gross sum of $16,000, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), which sum is payable in the first instance from the first applicant’s share of the net proceeds of the sale of the property at issue in the proceedings.
Catchwords:	CIVIL PROCEDURE – Costs orders – Applicant seeking gross costs assessment pursuant to section 98(4)(c) of the Civil Procedure Act 2005 (NSW) – Assessed gross sum of $16,000
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98(4)(c) Legal Profession Uniform Law (NSW), ss 194(1), 206
Cases Cited:	Foundas v Arambatzis (No 3) [2023] NSWSC 1513 Foundas v Arambatzis (No 6) [2024] NSWCA 231 Gabrielle v Abood (No 4) [2023] NSWCA 100
Category:	Costs
Parties:	Cassiani Foundas (First Applicant) Bill Foundas (Second Applicant) Peter Arambatzis (First Respondent) Sean Magnus Wengel (Second Respondent) Robert William Whitton (Third Respondent)
Representation:	Counsel: Second Applicant (Self-represented) T Harris-Roxas (First Respondent) Solicitors: Not applicable (Applicants) Cutri & Associates (First Respondent) William Roberts Lawyers (Second and Third Respondents)
File Number(s):	2024/4529
Decision under appeal	Court or tribunal: Supreme Court of New South Wale Jurisdiction: Equity – Commercial List Citation: [2023] NSWSC 1513; [2023] NSWSC 1648; [2024] NSWSC 400 Date of Decision: 06 December 2023 Before: Rees J; Kunc J File Number(s): 2021/297960; 2018/184682