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

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

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.

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…

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 4)

Details

AGLC: Kyriacou v Makis (No 4) [2023] NSWSC 1261
Case: [2023] NSWSC 1261
Decision Date: 26 October 2023

CaseChat Overview and Summary

The proceedings in Kyriacou v Makis (No 4) involved the parties Kyriacou and Makis before the court. The dispute centred around the costs associated with a notice of motion to amend a cross claim, specifically whether these costs should be borne by the cross-claimant on the ordinary or indemnity basis. The matter was adjudicated in the Supreme Court of New South Wales.

The central legal issue the court had to resolve was the appropriate basis for costs in relation to a notice of motion to amend a cross claim. This encompassed whether the cross-claimant should be responsible for the cross-respondent's costs under the ordinary costs basis, which allows the successful party to recover their costs from the unsuccessful party, or the indemnity basis, which requires the unsuccessful party to pay the successful party's costs. The court needed to determine the correct application of these principles in the context of the case.

In reaching its decision, the court examined the circumstances surrounding the motion and the cross claim. It considered the conduct of the parties, the reasons for the motion to amend, and the implications for the proceedings' fairness and efficiency. Ultimately, the court ruled that the cross-claimant should bear the cross-respondent's costs of the notice of motion on the indemnity basis. The court found that the motion was not frivolous or vexatious, and that the cross-claimant's conduct did not warrant a deviation from the usual costs order. The reasoning emphasised the importance of the principles governing costs in promoting a fair and just outcome in litigation.

As a result of the court's decision, the cross-claimant was ordered to pay the cross-respondent's costs of the notice of motion on the indemnity basis. This outcome reflects the court's commitment to ensuring that costs orders are proportionate and just, while also encouraging responsible conduct in the litigation process.

Orders