Kagelaris v Kagelaris (No 2)

Supreme Court

New South Wales

Medium Neutral Citation:

Kagelaris v Kagelaris (No 2) [2017] NSWSC 1263

Hearing dates:

In chambers

Date of orders:

20 September 2017

Decision date:

20 September 2017

Jurisdiction:

Equity

Before:

Robb J

Decision:

(1) The plaintiff is ordered to pay the defendant’s costs of the summons on the ordinary basis.

 

(2) The defendant is ordered to pay the plaintiff’s costs of the cross claim on the ordinary basis.

 (3) The defendant is ordered to pay the plaintiff’s costs of the notice of motion filed on 15 December 2016 on the ordinary basis.

Catchwords:

COSTS.

Legislation Cited:

Conveyancing Act 1919 (NSW) s 66G

Cases Cited:

Immigration and Ethnic Affairs, Re Minister for; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Re Swan Services Pty Ltd (in liquidation) [2017] NSWSC 692

Category:

Costs

Parties:

John Elefterios Kagelaris (plaintiff)
Peter Elefterios Kagelaris (defendant)

Representation:

Counsel: J Hassett, solicitor (plaintiff)
J Van Aalst (defendant)

  Solicitors: Hassett Lee & Co Lawyers (plaintiff)   
John Hertz Associates (defendant)

File Number(s):

2016/83657

Judgment

1. I delivered reasons for judgment in this matter on 31 March 2017, and made orders on 29 May 2017, after having given the parties time to consider the orders that should be made.

2. I ordered that the plaintiff’s summons be dismissed and also that the defendant’s cross claim be dismissed.

3. I made directions for the parties to deliver short written submissions on the issue of costs on the basis that I would deal with that issue in chambers.

4. As a preliminary matter, I note that the parties to these proceedings were involved in related proceedings in this court concerning the estate of their mother, known as The Estate of Agatha Kagelaris (2015/271484-1). Those proceedings were dealt with by Lindsay J on 22 February 2016 when his Honour made various orders. I mention these other proceedings because the defendant, by his counsel’s submissions dated 5 June 2017, asked for an order that the plaintiff pay his costs incurred in the other proceedings.

5. In his orders made on 22 February 2016 in those proceedings, Lindsay J reserved all question of costs, and reserved to the parties liberty to apply to the Probate List Judge in relation to the costs of the proceedings. Those orders therefore contemplated that any application concerning the reserved costs in those proceedings be made to Lindsay J.

6. As I am not familiar with the course of those other proceedings or why Lindsay J made the orders that he did, it would not be convenient for me to deal with those reserved costs, even if Lindsay J had not given the parties leave to apply to him to deal with those costs.

7. In these circumstances I do not propose to deal with the costs of the probate proceedings.

8. In order to deal with the costs of these proceedings I must first note the relief claimed by the two parties.

9. In his summons, the plaintiff sought an order that the grant of probate of the will of…