Kyriacou v Makis (No 4)

[2023] NSWSC 1261

Supreme Court

New South Wales

Medium Neutral Citation:

Kyriacou v Makis (No 4) [2023] NSWSC 1261

Hearing dates:

On the papers

Date of orders:

21 November 2023

Decision date:

26 October 2023

Jurisdiction:

Equity

Before:

Robb J

Decision:

See [8]-[10]

Catchwords:

COSTS – party/party – costs of notice of motion to amend cross claim – whether the cross-respondent’s costs of the notice of motion should be paid by the cross-claimant on the ordinary or the indemnity basis

Cases Cited:

Kyriacou v Makis (No 3) [2023] NSWSC 1098

Kyriacou v Makis (Supreme Court (NSW), Black J, 18 July 2023, unrep)

Category:

Costs

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:

Solicitors:
KP Lawyers & Barristers (Plaintiff/Cross-Defendant)
Swan Lawyers (First Defendant/Cross-Claimant)

File Number(s):

2018/00081547

Publication restriction:

N/A

JUDGMENT

1. The Court published its primary reasons for judgment on the most recent issue determined in these proceedings on 14 September 2023: see Kyriacou v Makis (No 3) [2023] NSWSC 1098 ("J").

2. At J [127], I required the parties to consider the reasons and to provide short minutes of order to my Associate to give effect to the judgment. By J [131], I invited the parties to serve and deliver to my Associate submissions on the costs of Ms Makis' notice of motion at the same time.

3. These brief reasons deal with the outstanding issue, and assume an understanding of the primary judgment.

4. Ms Makis asked the Court to make the following orders:

1.    By 9 October 2023, the Cross-Claimant is to serve an Amended Cross-Claim, including only the amendments granted leave by his Honour Justice Robb on 14 September 2023.

2.    The Cross-Defendant to serve a Defence to the Amended Cross-Claim by 6 November 2023.

3.    The Cross-Claimant to pay any costs thrown away by reason of the amendments to the Cross-Claim.

4.    Costs of the application to amend the Cross-Claim, heard on 9 August 2023, be costs in the cause.

5.    The proceedings be listed for further directions, including the allocation of a hearing date, at 9:30 AM on 13 November 2023.

5. Mr Kyriacou has advised the Court that he agrees to the making of these orders, save for order 4. Mr Kyriacou submits that the Court should make one of the two alternative orders 4 that I set out below (with his primary submission being that the first order 4 should be made):

4.    The Cross-Claimant to pay the costs of the Cross-Respondent on the indemnity basis and that such costs be payable forthwith.

4.    The Cross-Claimant pay the costs of the Cross-Respondent on the ordinary basis and that such costs be payable forthwith.

6. As I explained at J [10]-[15], Ms Makis' notice of motion seeking leave to amend her cross claim that was the subject of the primary judgment was not the first such application that she had made. Ms Makis made an application by notice of motion on 17 April 2023 for leave to amend her cross claim that was dealt with in an unreported judgment of Black J on 18 July 2023 (Kyriacou v Makis (Supreme Court (NSW), Black J, 18 July 2023, unrep)). His Honour gave Ms Makis very limited leave to amend, but otherwise dismissed her notice of motion with costs.

7. As I explained in some detail in the primary judgment, the application for leave to amend that was made by Ms Makis and dealt with in the primary judgment was in relative terms substantially identical to the earlier failed application. While Ms Makis had elaborated the wording of her proposed amended cross claim to some extent, in essence, the changes were not substantial, and were not sufficient to cause me to reach a significantly different conclusion than was reached by Black J in his judgment.

8. In these circumstances, I consider that the appropriate costs order is the second alternative costs order proposed by Mr Kyriacou. I am not prepared to hold that Ms Makis' second application was an abuse of process, or so unreasonable such as to justify an order for indemnity costs in respect of Ms Makis' failed notice of motion. Ms Makis had limited success and made a genuine, although unsuccessful, attempt to improve the wording of some of the claims in her proposed amended cross claim. It should be said, however, that I consider that there was some force in Mr Kyriacou's argument that his costs should be paid on the indemnity basis.

9. However, I am satisfied that an order should be made that entitles Mr Kyriacou to take steps to recover his costs of Ms Makis' latest notice of motion forthwith. Ms Makis has made two applications to amend her cross claim, and failed both times. She was ordered to pay the costs of the application dealt with by Black J and she will be ordered to pay the costs of the present application. There is substantial truth in the submission made on behalf of Mr Kyriacou that Ms Makis was, so to speak, having a “second bite at the cherry”. Mr Kyriacou will be required to wait until the final determination of the proceedings to prosecute the first costs order made in his favour by Black J. As Ms Makis took the risk of making a second, substantially identical application, it would be unjust to require Mr Kyriacou to also wait to prosecute the second costs order in his favour.

10. I therefore make the following orders (noting that I will stand the proceedings over before the Equity Registrar on the date selected by the parties):

1. By 30 November 2023, the Cross-Claimant is to serve an Amended Cross-Claim in the form of the draft Amended Cross-Claim attached and marked "A" to the consent short minutes of order signed by the solicitors for the parties and dated 20 November 2023. 

2. The Cross-Defendant to serve a Defence to the Amended Cross-Claim by 21 December 2023.

3. The Cross-Claimant to pay any costs thrown away by reason of the amendments to the Cross-Claim.

4. The Cross-Claimant to pay the costs of the Cross-Respondent of the application to amend the Cross-Claim heard on 9 August 2023 on the ordinary basis and that such costs be payable forthwith.

5. The proceedings be listed for further directions, including the allocation of a hearing date, at 9:30am on 5 February 2024.

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Decision last updated: 21 November 2023