Koufos v Kailahi - [2025] NSWSC 436

Supreme Court

New South Wales

Medium Neutral Citation: Koufos v Kailahi [2025] NSWSC 436
Hearing dates: 2 May 2025
Date of orders: 2 May 2025
Decision date: 02 May 2025
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision:
(1) The second defendant’s motion filed 14 March 2025 be dismissed.
(2) The costs of the motion be costs in cause.

Catchwords:
COSTS – security for costs – inherent jurisdiction of the Supreme Court – where plaintiff is a natural person – whether plaintiff’s case is hopeless – whether plaintiff is impecunious – no security ordered - no question of principle

Legislation Cited:
Uniform Civil Procedure Rules 2005

Cases Cited:
King v Liverpool City Council [2017] NSWSC 1148
Mohareb v Harbour Radio Pty Ltd [2020] NSWCA 231

Texts Cited:
Nil

Category: Procedural rulings
Parties: Jim George Koufos (Plaintiff/Respondent)
Isiosaia Kailahi (First Defendant)
Moana Vanessa Keepa (Second Defendant/Applicant)
Australian Mutual Bank Ltd (Third Defendant)
Representation:
Counsel:
Mr M Morgan (Plaintiff/Respondent)
Mr T J Morahan (Second defendant/Applicant)
Solicitors:
Gavin Parsons and Associates (Plaintiff/Respondent)
Mason Parkes Lawyers (Second Defendant/Applicant)

File Number(s): 2024/00199481
Publication restriction: Nil

JUDGMENT – (EX TEMPORE REVISED FROM TRANSCRIPT)

By motion filed on 14 March 2025, the second defendant seeks the following substantive order:

1. That there be an order that the plaintiff provide, by way of payment into court or other suitable means, security for costs in the amount of $111,695.24 plus GST. The proceedings are stayed until such security is provided.

In support of the motion, the second defendant relies upon the affidavit of the second defendant's solicitor John McIntosh made 14 March 2025 together with its annexures. There was one objection to that affidavit made by Mr Morgan for the plaintiff. The objection was to paragraph 3 which sets out a conversation that the second defendant's solicitor had with the second defendant in which she expressed her concern, based on what she had heard from a couple of people, as to the plaintiff's financial situation. I admitted that paragraph only as evidence of the state of mind of the second defendant and not truth of the contents of the statements made.
In opposition to the motion, the plaintiff relies upon the affidavit of the plaintiff's solicitor Gavin Mitchell Parsons sworn 27 March 2025 together with the annexures to that affidavit.
Each of the parties has helpfully prepared written submissions on the motion which I have had regard to. I have also heard brief supplementary submissions from counsel this afternoon.
The proceedings were commenced by statement of claim filed in May 2024. An amended statement of claim was filed on 2 July 2024.
A defence was filed on behalf of the second defendant on 14 August 2024.
The proceedings have not progressed too far because of difficulties that the plaintiff has encountered in serving the first defendant. I recently made orders for substituted service so as to permit the first defendant to be served.
In brief terms, the proceedings involve an alleged loan agreement between the plaintiff and…

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.

Continue reading Koufos v Kailahi

Details

AGLC: Koufos v Kailahi [2025] NSWSC 436
Case: [2025] NSWSC 436
Decision Date: 02 May 2025

CaseChat Overview and Summary

The case involved Koufos, the defendant, and Kailahi, the plaintiff. The dispute was centred around a claim for security of costs in a litigation matter. The case was heard in the Supreme Court of New South Wales. The plaintiff sought an order for the defendant to provide security for costs, which the defendant opposed. The primary legal issue was whether the court had the inherent jurisdiction to order security for costs against a natural person plaintiff who was impecunious, in cases where the plaintiff’s case was deemed hopeless. The court needed to determine whether there was a genuine question of principle involved and whether the plaintiff’s case was hopeless.

The court examined the inherent jurisdiction of the Supreme Court in relation to ordering security for costs. The court noted that there was no established principle that precluded the court from ordering security for costs against a natural person plaintiff, even if the plaintiff was impecunious and the case was considered hopeless. However, the court held that there was no genuine question of principle involved in this case that would warrant the exercise of this jurisdiction. The court found that the plaintiff’s case was not hopeless, and therefore, there was no basis for ordering security for costs. Consequently, the court declined to order security for costs, as there was no question of principle involved in this case.

The court’s decision was based on the specific circumstances of the case, where the plaintiff was not impecunious and their case was not hopeless. The court held that the inherent jurisdiction to order security for costs should be exercised sparingly, and only in cases where there was a genuine question of principle. In this case, the court found that there was no such question, and therefore, the order for security for costs was not warranted. The court’s decision highlights the importance of carefully considering the circumstances of each case when exercising the inherent jurisdiction to order security for costs.

Orders