Kukulovski v Georges - [2011] NSWSC 514

Supreme Court

New South Wales

Medium Neutral Citation: Kukulovski v Georges [2011] NSWSC 514
Hearing dates: Written submissions
Decision date: 03 June 2011
Jurisdiction: Equity Division - Corporations List
Before: Barrett J
Decision:
Order that the second plaintiff (National Andrews Pty Ltd) pay the defendants' costs of the proceedings

Catchwords: PROCEDURE - costs - where proceedings in substance brought by estate agent against its principals to determine entitlement to commission - where estate agent in liquidation and proceedings initially framed as application by liquidator for the court's direction and judicial advice - but principals joined at the outset as defendants - where principals (defendants) held entitled to recover balance of deposit held by estate agent because agent did not establish right to commission - costs order to be made against estate agent as unsuccessful party - whether order should be made against liquidator - held not, there being no dereliction by the liquidator and given the substantive nature of the proceedings from the outset
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001, s 53
Consumer, Trader and Tenancy Tribunal Regulation 2009, clause 20(4)
Corporations Act 2001 (Cth), s 511
Trustee Act 1925, s 63
Cases Cited: Arena Management Pty Ltd v Campbell Street Theatre Pty Ltd [2011] NSWCA 128
Kukolovski v Georges [2011] NSWSC 359
Mead v Watson [2005] NSWCA 133; (2005) 23 ACLC 718
Category: Costs
Parties: Trajan Kukulovski as liquidator of National Andrews Pty Ltd - Plaintiff
Badoui Georges, Sam Georges, Peter Georges, John Gerard George, Anna Maree Waters and Samuel Kenneth George - Defendants
Representation: Counsel
Mr K D Ginges - Plaintiff
Mr M Southwick - Defendant
Solicitors
Clamenz Corporate Lawyers - Plaintiff
Gary George & Co - Defendants

File Number(s): 2011/46044

Judgment

I am dealing with the question of costs consequent upon my judgment of 3 May 2011 ( Kukolovski v Georges [2011] NSWSC 359) and orders later made in conformity with it. One of those orders added National Andrews Pty Ltd as a plaintiff.

While the proceedings, as initially constituted, involved an application by the liquidator of the estate agent (National Andrews) for the court's direction under s 511 of the Corporations Act 2001 (Cth) or judicial advice under s 63 of the Trustee Act 1925, they were, from the outset, proceedings in which the principals of the estate agent were defendants. The liquidator's summons filed on 11 February 2011 described him as "Trajan Kukulovski in his capacity as liquidator of National Andrews Pty Ltd (in liquidation)" and named the six principals of the estate agent as defendants. They, by filing an appearance on 18 February 2011, in turn acquiesced in the liquidator's framing of the proceedings as adversary proceedings.

Moreover, the proceedings had as their objective the obtaining of the court's authoritative determination of entitlement to the sum of $62,500 held in trust by the estate agent - whether it belonged to the estate agent (National Andrews) so as to be an asset applicable in its winding up, or to the…

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 Kukulovski v Georges

Details

AGLC: Kukulovski v Georges [2011] NSWSC 514
Case: [2011] NSWSC 514
Decision Date: 03 June 2011

CaseChat Overview and Summary

The case of Kukulovski v Georges involved a dispute between an estate agent, which was in liquidation, and its principals who were the defendants. The agent sought to determine its entitlement to a commission, but the principals argued that the agent was not entitled to the commission and sought to recover the balance of a deposit held by the agent. The court was tasked with deciding the entitlement to the commission and the costs associated with the proceedings. The key legal issue before the court was whether the estate agent was entitled to a commission for its services, and if not, whether the costs of the proceedings should be awarded against the liquidator of the estate agent.

The court determined that the estate agent was not entitled to the commission as it had not established its right to the commission. Consequently, the principals were entitled to recover the balance of the deposit held by the estate agent. The court further considered the issue of costs, ruling that an order should be made against the estate agent as the unsuccessful party. However, the court held that the order should not be made against the liquidator because there was no dereliction by the liquidator and the proceedings were substantive in nature from the outset, with the principals joined as defendants at the beginning.

The final orders of the court were that the estate agent was not entitled to the commission it sought, and the principals were entitled to recover the balance of the deposit held by the estate agent. Additionally, the court ordered that costs be awarded against the estate agent as the unsuccessful party. The court explicitly stated that no costs order should be made against the liquidator, given the circumstances of the case.

Orders