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Kyriacou v Makis (No 3)

Kyriacou v Makis (No 3)

Case [2023] NSWSC 1098 14 September 2023

Appeal

Jurisdiction

Discovery & Disclosure

Interlocutory Orders

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kyriacou v Makis (No 3) [2023] NSWSC 1098
Hearing dates: 9 August 2023
Decision date: 14 September 2023
Jurisdiction: Equity
Before: Robb J
Decision:
See [127]-[131]

Catchwords:
CIVIL PROCEDURE – pleadings – amendment – applications for leave to amend pleadings – where first defendant makes second application seeking leave to file an amended cross claim against the plaintiff – where the second application is similar to, but in some relevant aspects different to, the first application determined by the Court – whether the Court should determine the second application without being bound by the outcome of the first application or the reasons provided by the Court in its determination of the first application – whether the proposed amendments in the second application cure the deficiencies identified by the Court upon the determination of the first application – consideration of the principles and procedures that are to be applied by the Court when a party seeks to make a new interlocutory application on a subject that has already been determined by the Court – held that the Court is not bound by the conclusions reached in respect of the first application if material changes have been made to the wording of the draft amended cross claim – held that the amended cross claim the subject of the second application suffers from the same deficiencies as the amended cross claim the subject of the first application – no justification established for the Court to depart from the rulings made in respect of the first application in the determination of the second application

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Income Tax Assessment Act 1936 (Cth), s 91

Cases Cited:
Kyriacou v Makis [2021] NSWSC 60
Kyriacou v Makis (Supreme Court (NSW), Black J, 18 July 2023, unrep)
Re Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896
Re Graziers Pastoral Pty Ltd [2021] NSWSC 1680

Texts Cited:
Ritchie’s Uniform Civil Procedure NSW (LexisNexis Butterworths, looseleaf)

Category: Procedural rulings
Parties: Kyriacos Kyriacou (Plaintiff/Cross-defendant)
Andrea Makis (First Defendant/Cross-claimant)
Tina Georgiou as Executor of the Estate of the Late George Georgiou (Second Defendant)
Sam Pambris (Third Defendant)
Representation:
Counsel:
J Darvall (Plaintiff/Cross-defendant)
B May (First Defendant/Cross-claimant)
Solicitors:
KP Lawyers & Barristers (Plaintiff/Cross-defendant)
Swan Lawyers (First Defendant/Cross-claimant)

File Number(s): 2018/00081547
Publication restriction: Nil

JUDGMENT

By notice of motion filed on 31 July 2023, Andrea Makis, who is the first defendant and the cross claimant in these proceedings, seeks leave to file an amended cross claim against Kyriacos Kyriacou, who is the plaintiff and cross defendant.

The principal judgment

The Court published its principal judgment in these proceedings on 9 February 2021: see Kyriacou v Makis [2021] NSWSC 60 (the "principal judgment" or "J"). The Court found that Mr Kyriacou had failed in his attempt to establish that a document called the "Partnership Dissolution Agreement" was an enforceable contract. By his proceedings, Mr Kyriacou had hoped to prove that he and 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 3)

Details

AGLC: Kyriacou v Makis (No 3) [2023] NSWSC 1098
Case: [2023] NSWSC 1098
Decision Date: 14 September 2023

CaseChat Overview and Summary

The case of Kyriacou v Makis (No 3) involved a second application by the first defendant seeking leave to file an amended cross-claim against the plaintiff. The matter was before the Supreme Court of Victoria. The first defendant's initial application for leave to amend had been previously determined by the court, which had declined to grant leave. The first defendant's second application was similar in nature but differed in some respects from the first. The plaintiff opposed the second application on the grounds that the court should be bound by its earlier decision.

The central legal issue before the court was whether it should be bound by its earlier decision when considering the second application for leave to amend. The court had to determine if the second application could be decided without reference to the previous ruling and whether the proposed amendments addressed the deficiencies previously identified. Additionally, the court had to consider the principles and procedures applicable when a party seeks to make a new interlocutory application on a matter already determined.

The court held that it was not bound by the conclusions reached in respect of the first application if material changes had been made to the draft amended cross-claim. However, upon examining the second application, the court found that the amended cross-claim suffered from the same deficiencies as the one in the first application. The court concluded that the first defendant had not established any justification for departing from the rulings made in respect of the first application. Consequently, the second application was also dismissed.

The court's decision emphasised the importance of ensuring that any proposed amendments adequately address the deficiencies previously identified by the court. The court reaffirmed that each application for leave to amend must be assessed on its own merits, and previous rulings do not necessarily bind the court if there are material changes in the application. The second application was dismissed, maintaining the rulings of the first application.

Orders