Foundas v Arambatzis (No 4)

Case [2023] NSWSC 1648


Supreme Court


New South Wales

Medium Neutral Citation: Foundas v Arambatzis (No 4) [2023] NSWSC 1648
Hearing dates: On the papers
Date of orders: 22 December 2023
Decision date: 22 December 2023
Jurisdiction:Equity - Commercial List
Before: Rees J
Decision:

Indemnity costs orders; gross sum payable.

Catchwords:

COSTS — Indemnity basis — Whether claimant has been put to unnecessary expense of meeting unmeritorious claims — Where respondent’s claim based on forged documents — No doubt as to the falsity of the allegations advanced — respondent’s conduct amounts to a relevant delinquency or exceptional circumstances warranting an indemnity costs order.

COSTS — Civil Procedure Act 2005, s 98(4)(c) — Gross sum costs order — Whether appropriate in the circumstances — Where claimant of limited financial means and respondent’s ability to satisfy such an order in doubt

COSTS — whether evidence in support of costs claimed sufficient — Where no evidence that invoices presented have been paid — Liability for costs relevant question — Where unclear when cost agreement entered — section 174 of the Legal Profession Uniform Law 2014 (NSW) — Consequences of no disclosure should be no broader those contemplated by into section 178 of the Legal Profession Uniform Law 2014 (NSW).

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Legal Profession Uniform Law 2014 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Barrett Property Group Ltd v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823

Baychek v Baychek [2010] NSWSC 987

Bitek Pty Ltd v iConnect Pty Ltd (2012) 290 ALR 288; [2012] FCA 506

Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354

Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916

Fang v Sun (No 2) [2014] NSWSC 1194

Foundas v Arambatzis (No 2) [2023] NSWSC 1329

Foundas v Arambatzis (No 3) [2023] NSWSC 1513

Foundas v Arambatzis (No 5) [2022] NSWCA 113

Foundas v Arambatzis [2020] NSWCA 47

Hadid v Lenfest Communications Inc [2000] FCA 628

Hamod v New South Wales [2011] NSWCA 375

Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213

Huang v Wei (No 3) [2022] NSWSC 662

Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23

In the matter of Pacific Springs Pty Ltd [2021] NSWSC 66

In the matter of Ryals Hotel Pty Ltd [2021] NSWSC 42

Maineri v Cirillo (2014) 47 VR 127; [2014] VSCA 227

McGettigan v Coulter (No 2) [2021] NSWSC1356

Mourik v Von Marburg [2016] VSC 601

RinRim Pty Ltd v Deutsche Bank AG (Costs) [2016] NSWSC 1510

RinRim Pty Ltd v Deutsche Bank AG [2017] NSWCA 169

Salvatore Blanda v Kemp Strang Lawyers Pty Ltd [2006] NSWSC 48

Shaw v Yarranova Pty Ltd [2011] VSCA 55

Sony Entertainment (Australia) Ltd v Smith (2005) 215 ALR 788; [2005] FCA 228

Southern Cross Mine Management Pty Ltd v Ensham Resources Pty…

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AGLC
Foundas v Arambatzis (No 4) [2023] NSWSC 1648
Case
[2023] NSWSC 1648
Decision Date

CaseChat Overview and Summary

The matter involved Foundas, the appellant, and Arambatzis, the respondent, with the Court of Appeal deciding the appeal. The dispute was centred on a costs order made against Foundas in relation to a case where the respondent's claims were based on forged documents. The appeal challenged the primary judge's decision to award gross sum costs to the appellant.

The court had to consider whether the appellant was entitled to an indemnity costs order due to the respondent's conduct, which was deemed unmeritorious and vexatious, as it involved forged documents. The court also examined the appropriateness of a gross sum costs order under the circumstances, taking into account the appellant's limited financial means and the respondent's ability to satisfy such an order. Additionally, the court assessed the sufficiency of the evidence presented in support of the costs claimed, particularly regarding the payment of invoices and the timing of the cost agreement.

The Court of Appeal found that the respondent's conduct warranted an indemnity costs order as it amounted to a relevant delinquency or exceptional circumstances. The court also deemed the gross sum costs order appropriate given the appellant's financial constraints and the respondent's questionable ability to pay. The court concluded that the evidence provided was sufficient to support the costs claimed, noting that the consequences of non-disclosure should not be broader than those contemplated by the relevant legislation.

The court ordered that the respondent pay the appellant's costs on an indemnity basis, along with an additional sum to cover the costs of the appeal. The court also confirmed the appropriateness of the gross sum costs order and directed the parties to adhere to the relevant legal provisions concerning the disclosure of costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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