Kyriacou v Makis (No 2) - [2021] NSWSC 802

Supreme Court

New South Wales

Medium Neutral Citation: Kyriacou v Makis (No 2) [2021] NSWSC 802
Hearing dates: On the papers
Date of orders: 1 July 2021
Decision date: 01 July 2021
Jurisdiction: Equity
Before: Robb J
Decision:
See pars [15] and [23]-[25]. Save for any costs orders that have been made to date, the costs of the proceedings to the point of the delivery of judgment handed down on 9 February 2021 are reserved.

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Where first defendant, while successful at the primary hearing, serially failed to comply with case management orders to file a cross claim in a manner that amounted to a breach of s 56 of the Civil Procedure Act 2005 (NSW) — Where cross claim filed after conclusion of primary hearing necessitating further prolonged litigation — Where the Court found that it would not be appropriate to make a costs order in favour of the first defendant

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Kyriacou v Makis [2021] NSWSC 60
Rhino Rack Australia Pty Ltd v Hub Computing Services Pty Ltd [2021] NSWSC 231

Category: Costs
Parties: Kyriacos Kyriacou (plaintiff)
Andrea Makis (first defendant)
Tina Georgiou as Executor of the Estate of the Late George Georgiou (second defendant)
Sam Pambris (third defendant)
Representation:
Counsel:
J Darvall (plaintiff)
B May (first defendant)
Solicitors:
Valenti & Valenti Solicitors (plaintiff)
Allsop Glover Solicitors (first defendant)

File Number(s): 2018 / 81547

Judgment

As these proceedings were originally constituted, the plaintiff, Mr Kyriacou, sued to enforce an agreement allegedly made between himself and Ms Makis, in about June 2012, to the effect that Ms Makis’ interest in a set of units that were called the MacDonald Street units would be transferred to him. The agreement was said to be contained in a document called the “Partnership Dissolution Agreement”.
On 9 February 2021, I published the primary judgment in these proceedings on Mr Kyriacou’s claim: Kyriacou v Makis [2021] NSWSC 60. I dismissed Mr Kyriacou’s claim. Although Mr Kyriacou apparently believed that a final and binding agreement had been made with Ms Makis, and the evidence supported a conclusion that negotiations had been undertaken for that purpose, Mr Kyriacou failed to prove that a specific agreement had been made with Ms Makis’ authority.
Prima facie, under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.1, the costs of the proceedings should follow the event, which would mean that an order would be made that Mr Kyriacou pay Ms Makis’ costs of the proceedings on the ordinary basis. However, UCPR r 42.1 maintains the Court’s discretion as to the costs order that is appropriate and the Court may make a different order if it is satisfied, on the application of judicial principle, that some other order should be made.
This matter raises special circumstances, as it has become apparent that, by reason of the manner in which Ms Makis…

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 Kyriacou v Makis (No 2)

Details

AGLC: Kyriacou v Makis (No 2) [2021] NSWSC 802
Case: [2021] NSWSC 802
Decision Date: 01 July 2021

CaseChat Overview and Summary

Kyriacou v Makis (No 2) involved a dispute between the parties over property matters. The case was heard in the Supreme Court of New South Wales. The first defendant, Makis, was successful in the primary hearing but failed to comply with case management orders to file a cross claim. This failure resulted in further litigation and costs to the plaintiff, Kyriacou.

The legal issues that the court had to decide included whether the first defendant's failure to comply with case management orders was a breach of section 56 of the Civil Procedure Act 2005 (NSW) and whether it would be appropriate to make a costs order in favour of the first defendant. The court had to balance the principle that costs follow the event with the need to ensure that parties comply with procedural requirements.

The court found that the first defendant's failure to comply with case management orders amounted to a breach of section 56 of the Civil Procedure Act 2005 (NSW). However, the court also found that it would not be appropriate to make a costs order in favour of the first defendant. The court reasoned that the first defendant's failure to comply with case management orders resulted in further litigation and costs to the plaintiff, which was not in the interests of justice. The court also noted that the first defendant's failure to comply with case management orders was not a minor or technical breach, but a serious breach that caused significant delay and expense.

The court did not make a costs order in favour of the first defendant. The court ordered that the costs of the primary hearing be paid by the plaintiff and that the first defendant bear its own costs of the further litigation. The court emphasised the importance of parties complying with procedural requirements and the need to ensure that the interests of justice are served.

Orders