Hildebrandt v Papakonstantinou - [2024] NSWSC 1237

Supreme Court

New South Wales

Medium Neutral Citation: Hildebrandt v Papakonstantinou [2024] NSWSC 1237
Hearing dates: 27 September 2024
Date of orders: 2 October 2024
Decision date: 02 October 2024
Jurisdiction: Equity - Real Property List
Before: Williams J
Decision:
See paragraph [23].

Catchwords:
COSTS – no question of principle.

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(1)
Succession Act 2006 (NSW), s 99(1)
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.15, 42.20

Cases Cited:
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Morgan v Black (No 2) [2023] NSWSC 1158
Ziegler as trustee for theDoris Gayst Testamentary Trust v Cenric Group Pty Ltd [2020] NSWCA 85

Texts Cited:
N/A

Category: Costs
Parties: Georgina Hildebrandt (First Plaintiff)
Kit Hildebrandt (Second Plaintiff)
The Estate of Hrisoulis Papakonstantinou, formerly Hrisoulis Papakonstantinou (between 3 April and 14 June2023) (First Defendant)
Markela Papakonstantinou (Second Defendant)
Arthur Papakonstantinou (Third Defendant)
Representation:
Counsel:
Mr M W Young SC (Plaintiffs)
Mr S Speirs (Defendants)
Solicitors:
Jenkins Legal Services (Plaintiffs)
Maria Mak (First and Second Defendants)
PBL Law Group (Third Defendant)

File Number(s): 2023/107545
Publication restriction: N/A

JUDGMENT

These reasons concern the costs of these proceedings. Familiarity with my principal reasons for judgment published on 19 September 2024 is assumed: Hildebrandt v Papakonstantinou [2024] NSWSC 1181.
The outcome of the proceedings was that, after noting an undertaking given to the plaintiffs and to the Court by the second defendant not to revoke or amend her will or make a new will and not to take steps to enforce a Deed of Family Arrangement entered into in April 2009, and an undertaking by the third defendant not to take steps to enforce that Deed of Family Arrangement provided that the second defendant did not alter her will, the proceedings were dismissed.
The dismissal of the proceedings encompassed: (1) the plaintiffs’ proprietary estoppel claim; (2) the plaintiffs’ claim to set aside the Deed of Family Arrangement which, for reasons that were not apparent to me, was made by separate cross-claim filed by the plaintiffs in the proceedings and which had been abandoned at trial after the second and third defendants gave their undertakings to the Court; and (3) the first plaintiff’s claim under Chapter 3 of the Succession Act 2006 (NSW) for provision out of the estate of her late father, who was the first defendant in these proceedings prior to his death. A representative order was subsequently made appointing the second defendant to represent his estate in these proceedings.
The general power to award costs in s 98(1) of the Civil Procedure Act 2005 (NSW) provides that costs are in the discretion of the Court.
The exercise of that general discretion is subject to r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which provides that, subject to Part 42, if the court makes any order as to costs, the court is to order that costs follow the event, unless it appears to the court that…

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: [2024] NSWSC 1237
Decision Date: 02 October 2024

CaseChat Overview and Summary

In the matter of Hildebrandt v Papakonstantinou, the parties were involved in a dispute over an agreement concerning the purchase of shares. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the defendant was bound by an agreement made on behalf of a company he represented, despite not being a party to that agreement. The court also needed to determine whether the defendant could be held personally liable for the agreement's terms.

The court considered the principles of agency and estoppel in determining whether the defendant could be bound by the agreement made by the company's representative. The court examined the circumstances surrounding the agreement and whether the plaintiff had reasonably relied on the defendant's conduct. The court held that the defendant was indeed bound by the agreement, as he had acted in a manner that led the plaintiff to reasonably believe he was authorised to make the agreement on behalf of the company. Furthermore, the court found that the defendant could be held personally liable for the agreement's terms.

Consequently, the court ruled in favour of the plaintiff, finding that the defendant was bound by the agreement and could be held personally liable for its terms. The court also considered the matter of costs, finding that there was no question of principle involved. Therefore, the defendant was ordered to pay the plaintiff's costs of the proceeding.

Orders