Kordovoulos v Dixon-Hughes - [2022] NSWCA 110

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kordovoulos v Dixon-Hughes [2022] NSWCA 110
Hearing dates: 16 June 2022
Date of orders: 30 June 2022
Decision date: 30 June 2022
Before: Mitchelmore JA
Decision:
(1) Pursuant to UCPR rule 51.50(1), the appellants are to provide within 14 days security in the sum of $25,000 for the first respondent’s costs of the appeal either by payment of that amount into Court or in such other form as the appellants and respondents may agree in writing before that time expires.
(2) Stay these proceedings until the appellants have provided security for the first respondent’s costs of the appeal in accordance with Order 1.
(3) Order that the appellants pay the respondents’ costs of the application.
(4) List the proceedings before the Registrar on 20 July 2022 for directions.

Catchwords:
APPEAL – representation of deceased estate – where interest of estate in the outcome of the appeal – where probate not to be applied for – appropriate for sole beneficiary under the will to be appointed to represent the estate
APPEAL – security for costs – where security for costs sought against individual appellants – whether special circumstances existed warranting the grant of security for costs – special circumstances found

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), rules 7.10 51.16, 51.37, 51.50

Cases Cited:
Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1
Binetter (as the Representative of the Estate of the Late Ida Wolff) v Binetter [2020] NSWSC 552
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Johnson v Mackinnon [2021] NSWCA 152
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Longjing Pty Ltd v Perpetual Nominees Ltd [2017] NSWSC 1690
Mr D v Ms P [2020] NSWCA 174
Murray John Carter v Ian Mehmet t/as ATF Ian G Mehmet Testamentary Trust [2021] NSWCA 32
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
Tait v Bindal People [2002] FCA 322
Tran v The Commonwealth [2009] FCA 921
Tyneside Management Pty Ltd v Hammersmith Management Pty Ltd [2013] NSWCA 404

Category: Procedural rulings
Parties: Vicki Kordovoulos (First Appellant/Respondent on the motion)
Vicki Kordovoulos as representative of the Estate of John Kordovoulos (Second Appellant/Respondent on the motion)
Ramonda Dixon-Hughes (First Respondent/Applicant on the motion)
Mario Kordovoulos as the Executor of the Estate of Yvette Kordovoulos (Second Respondent/Applicant on the motion)
Representation:
Counsel:
M Condon SC (Respondents/Applicants on the motion)
D Eardley (Appellants/Respondents on the motion)
Solicitors:
Marsdens Law Group (Respondents/Applicants on the motion)
Theodore Solomon & Partners (Appellants/Respondents on the motion)

File Number(s): 2021/194547
2022/18349
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Expedition List

Citation:

[2021] NSWSC 722

Date of Decision:

18 June 2021

Before:

Sackar J

File Number(s):

2018/334286

Judgment

MITCHELMORE JA: By notice of motion dated 25 March 2022, the respondents sought an order that the appellants provide security for costs, pursuant to rule 51.50…

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: [2022] NSWCA 110
Decision Date: 30 June 2022

CaseChat Overview and Summary

In *Kordovoulos v Dixon-Hughes*, the appellants sought to appeal a decision, but the first respondent applied for security for costs. The appeal concerned the representation of a deceased estate, where probate had not yet been applied for, and the sole beneficiary under the will was acting to represent the estate. The court was required to determine whether the sole beneficiary was an appropriate person to represent the estate in the appeal, and whether special circumstances existed to warrant an order for security for costs against the individual appellants.

The court found that it was appropriate for the sole beneficiary to represent the deceased estate in the appeal, given that probate had not yet been obtained and the beneficiary's interest aligned with that of the estate. Regarding the security for costs application, the court determined that special circumstances did exist, justifying the grant of security. The court reasoned that the appellants' financial position and the potential for them to be unable to meet the respondents' costs if the appeal were unsuccessful constituted such special circumstances.

Consequently, the court ordered that the appellants provide security for the first respondent's costs of the appeal in the sum of $25,000 within 14 days, either by payment into court or by agreement with the respondents. The proceedings were stayed until this security was provided. The appellants were also ordered to pay the respondents' costs of the application for security for costs, and the proceedings were listed for directions before the Registrar.

Orders

Orders of the court

(1) Pursuant to UCPR rule 51.50(1), the appellants are to provide within 14 days security in the sum of $25,000 for the first respondent’s costs of the appeal either by payment of that amount into Court or in such other form as the appellants and respondents may agree in writing before that time expires.

(2) Stay these proceedings until the appellants have provided security for the first respondent’s costs of the appeal in accordance with Order 1.

(3) Order that the appellants pay the respondents’ costs of the application.

(4) List the proceedings before the Registrar on 20 July 2022 for directions.

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:	Kordovoulos v Dixon-Hughes [2022] NSWCA 110
Hearing dates:	16 June 2022
Date of orders:	30 June 2022
Decision date:	30 June 2022
Before:	Mitchelmore JA
Decision:	(1) Pursuant to UCPR rule 51.50(1), the appellants are to provide within 14 days security in the sum of $25,000 for the first respondent’s costs of the appeal either by payment of that amount into Court or in such other form as the appellants and respondents may agree in writing before that time expires. (2) Stay these proceedings until the appellants have provided security for the first respondent’s costs of the appeal in accordance with Order 1. (3) Order that the appellants pay the respondents’ costs of the application. (4) List the proceedings before the Registrar on 20 July 2022 for directions.
Catchwords:	APPEAL – representation of deceased estate – where interest of estate in the outcome of the appeal – where probate not to be applied for – appropriate for sole beneficiary under the will to be appointed to represent the estate APPEAL – security for costs – where security for costs sought against individual appellants – whether special circumstances existed warranting the grant of security for costs – special circumstances found
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rules 7.10 51.16, 51.37, 51.50
Cases Cited:	Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 Binetter (as the Representative of the Estate of the Late Ida Wolff) v Binetter [2020] NSWSC 552 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Johnson v Mackinnon [2021] NSWCA 152 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Longjing Pty Ltd v Perpetual Nominees Ltd [2017] NSWSC 1690 Mr D v Ms P [2020] NSWCA 174 Murray John Carter v Ian Mehmet t/as ATF Ian G Mehmet Testamentary Trust [2021] NSWCA 32 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 Tait v Bindal People [2002] FCA 322 Tran v The Commonwealth [2009] FCA 921 Tyneside Management Pty Ltd v Hammersmith Management Pty Ltd [2013] NSWCA 404
Category:	Procedural rulings
Parties:	Vicki Kordovoulos (First Appellant/Respondent on the motion) Vicki Kordovoulos as representative of the Estate of John Kordovoulos (Second Appellant/Respondent on the motion) Ramonda Dixon-Hughes (First Respondent/Applicant on the motion) Mario Kordovoulos as the Executor of the Estate of Yvette Kordovoulos (Second Respondent/Applicant on the motion)
Representation:	Counsel: M Condon SC (Respondents/Applicants on the motion) D Eardley (Appellants/Respondents on the motion) Solicitors: Marsdens Law Group (Respondents/Applicants on the motion) Theodore Solomon & Partners (Appellants/Respondents on the motion)
File Number(s):	2021/194547 2022/18349
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity – Expedition List Citation: [2021] NSWSC 722 Date of Decision: 18 June 2021 Before: Sackar J File Number(s): 2018/334286