New South Wales
Court of Appeal
CITATION: Wagstaff v Keramianakis & Anor [2006] NSWCA 137 HEARING DATE(S): 9 December 2004, 18 October 2005
JUDGMENT DATE:
30 May 2006JUDGMENT OF: Giles JA at 1; McColl JA at 2; Brownie AJA at 79 DECISION: 1. First and second opponents to pay the claimant’s and third opponent’s costs of the first appeal hearing, save to the extent that those costs are already covered by the costs thrown away order/agreement. 2. Claimant to pay the opponents’ costs of the second appeal hearing save to the extent that those costs are covered by the costs thrown away order/agreement. CATCHWORDS: PRACTICE and PROCEDURE - COSTS - First appeal hearing - Summons for Leave to Appeal adjourned to permit first and second opponents to seek leave to amend Statement of Claim in District Court - first and second opponents' failure to make amendment application before first appeal hearing cause of wasted costs of that hearing - HELD - first and second opponents to pay costs of first appeal hearing save to extent already covered by costs thrown away order/agreement - Second appeal hearing - Summons for Leave to Appeal otiose once first and second opponents given leave to amend Statement of Claim - HELD - claimant to pay costs of second appeal hearing save to extent already covered by costs thrown away order/agreement. (ND) LEGISLATION CITED: Civil Procedure Act 2005
Defamation Act 1974
Law Reform (Miscellaneous Provisions) Act 1946
Supreme Court Rules 1970CASES CITED: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Brittain v The Commonwealth of Australia (No 2) [2004] NSWCA 427
Doan & Anor v Advanced Microdevices Incorporated & Ors [2004] NSWSC 216
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478
Griffith & Ors v ABC & Ors [2003] NSWSC 298
In Re the Will of F. B. Gilbert (decd.) (1946) SR (NSW) 318
John Zunter v John Fairfax Publications Pty Ltd [2005] NSWSC 119; (2005) 62 NSWLR 594
Steffen v Ruban [1966] 2 NSWR 622;
Webb v Bloch (1928) 41 CLR 331PARTIES: Bruce Wagstaff - Claimant
Con Keramianakis - First Opponent
Akbert Smagarinsky - Second OpponentFILE NUMBER(S): CA 40421/04 COUNSEL: B A M Connell (9 December 2004) - Claimant
B A McClintock SC (18 October 2005) - Claimant
A A Henskens with A E Maroya - First and Second Opponents
J S Wheelhouse - Third OpponentSOLICITORS: Banki Haddock Fiori - Claimant
Pryor Tzannes & Wallis - First and Second Opponents
Gilbert & Tobin - Third Opponent
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC10264/01 LOWER COURT JUDICIAL OFFICER: Cooper DCJ LOWER COURT DATE OF DECISION: 18 May 2004
- 1 -
CA 40421/04
DC 10264/01Tuesday 30 May 2006GILES JA
McCOLL JA
BROWNIE AJA
Bruce WAGSTAFF v Con KERAMIANAKIS & ORS
Judgment
1 GILES JA: I agree with McColl JA.
2 McCOLL JA: Bruce Wagstaff, the claimant,…
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Details
- AGLC
- Gianoutsos v Glykis [2006] NSWCA 137
- Case
- [2006] NSWCA 137
- Decision Date
CaseChat Overview and Summary
In *Gianoutsos v Glykis*, the New South Wales Court of Appeal considered an application for leave to appeal and the associated costs orders. The dispute arose from a summons for leave to appeal, which had been adjourned to allow the first and second opponents an opportunity to seek leave to amend their Statement of Claim in the District Court.
The primary legal issues before the Court of Appeal were the allocation of costs for two separate appeal hearings. Specifically, the court had to determine who should bear the costs of the first appeal hearing, given the first and second opponents' failure to make their amendment application before that hearing, and who should bear the costs of the second appeal hearing, which became otiose once leave to amend was granted.
The Court of Appeal reasoned that the first and second opponents' failure to pursue their amendment application prior to the first appeal hearing resulted in wasted costs for that hearing. Consequently, they were ordered to pay the claimant's and third opponent's costs of the first appeal hearing, subject to any existing costs thrown away order or agreement. Regarding the second appeal hearing, the court found that the summons for leave to appeal had become unnecessary once the first and second opponents were granted leave to amend their Statement of Claim. Therefore, the claimant was ordered to pay the opponents' costs of the second appeal hearing, again subject to any existing costs thrown away order or agreement.
The primary legal issues before the Court of Appeal were the allocation of costs for two separate appeal hearings. Specifically, the court had to determine who should bear the costs of the first appeal hearing, given the first and second opponents' failure to make their amendment application before that hearing, and who should bear the costs of the second appeal hearing, which became otiose once leave to amend was granted.
The Court of Appeal reasoned that the first and second opponents' failure to pursue their amendment application prior to the first appeal hearing resulted in wasted costs for that hearing. Consequently, they were ordered to pay the claimant's and third opponent's costs of the first appeal hearing, subject to any existing costs thrown away order or agreement. Regarding the second appeal hearing, the court found that the summons for leave to appeal had become unnecessary once the first and second opponents were granted leave to amend their Statement of Claim. Therefore, the claimant was ordered to pay the opponents' costs of the second appeal hearing, again subject to any existing costs thrown away order or agreement.
Orders
Orders of the court
1. First and second opponents to pay the claimant’s and third opponent’s costs of the first appeal hearing, save to the extent that those costs are already covered by the costs thrown away order/agreement. 2. Claimant to pay the opponents’ costs of the second appeal hearing save to the extent that those costs are covered by the costs thrown away order/agreement.
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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