Kyriacou v Raphis Securities Pty Ltd - [2022] NSWSC 196

Supreme Court

New South Wales

Medium Neutral Citation: Kyriacou v Raphis Securities Pty Ltd [2022] NSWSC 196
Hearing dates: 2 February 2022
Date of orders: 3 March 2022
Decision date: 03 March 2022
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Dismiss the application by the plaintiffs, pursuant to the amended notice of motion dated 25 January 2022 and filed in Court on 2 February 2022, for an order pursuant to r 28.5 of the UCPR that this proceeding and three other sets of proceedings (namely, 2021/00168744 on the one hand and 2021/00169193/2021/00228163 on the other hand, those last two proceedings now already having been consolidated) be heard together, with evidence in each proceeding to be evidence in each of the other proceedings.
2. Direct the parties to file any brief submissions on costs within 14 days, with a view if possible to determining the issue of costs on the papers.
3. Note that, other than costs, this disposes of the amended notice of motion dated 25 January 2022.

Catchwords:
PROCEDURE – Applicants seeking leave to consolidate proceedings – Whether proceedings of a similar nature – Whether issues of fact common to proceedings – Commonality of witnesses – Alternatives to consolidation of proceedings – Prospect of substantial delays – Trial management – Inconvenience – Saving of time – Whether one proceeding is further advanced than another

Legislation Cited:
Australian Consumer Law s 20
Civil Procedure Act 2005 (NSW) s 56 - 60
Contracts Review Act 1980 (NSW)
Probate and Administration Act 1898 (NSW), s 61
Uniform Civil Procedure Rules 2005 (NSW), r 28

Cases Cited:
CB Cuckoo Pty Ltd v Kyriacou [2021] NSWSC 991
Cousins v Cousins (1948) 51 WALR 57
Fitzgerald (as Admin of Estate of Late Lesley Provan) v Cooper [2020] NSWSC 451
Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110
Green Camel Pty Ltd v Urban Ecological Systems Ltd [2017] NSWSC 362
Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699
Marzol v Joubert; Marzol v Killen [2018] NSWSC 586
Sydmar Pty Ltd v Statewise Developments Pty Ltd [1987] 11 ACLR 616

Category: Procedural rulings
Parties: George Kyriacou (First Plaintiff on the Notice of Motion)
Philomina Kyriacou (Second Plaintiff on the Notice of Motion)
Angelo Phillip Russo (First Respondent to the Notice of Motion)
Phillip Angelo Russo (Second Respondent to the Notice of Motion)
Wentworth Williams Auditors Pty Ltd (Third Respondent to the Notice of Motion)
Mahesh Mora (Fourth Respondent to the Notice of Motion)
Lux Advisory Pty Ltd (Fifth Respondent to the Notice of Motion)
Viribus Partners Pty Ltd (Sixth Respondent to the Notice of Motion)
Wentworth Williams Advisory Services Pty Ltd (Seventh Respondent to the Notice of Motion)
Linda Westacott (Eighth Respondent to the Notice of Motion)
Reliance Financial Services Pty Ltd (Ninth Respondent to the Notice of Motion)
Accolade Advisory Pty Ltd (Tenth Respondent to the Notice of Motion)
John Kyriacou (Eleventh Respondent to the Notice of Motion)
NSW Trustee and Guardian (Twelfth Respondent to the Notice of Motion)
Perpetual…

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.

Keep reading for free

Create a free CaseChat account to read Kyriacou v Raphis Securities Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWSC 196
Decision Date: 03 March 2022

CaseChat Overview and Summary

The applicants, Kyriacou, sought leave to consolidate three separate proceedings against Raphis Securities Pty Ltd. The dispute revolved around allegations of financial misconduct, specifically breaches of fiduciary duty and negligence in the management of financial investments. The proceedings were before the Supreme Court of New South Wales, highlighting the complexity and potential overlap in the claims made against the defendant.

The central legal issues before the court were whether the proceedings were of a similar nature, if there were common issues of fact, and whether consolidation would serve the interests of justice. The applicants argued that the proceedings shared a commonality in the witnesses and factual basis, suggesting that consolidation would streamline the legal process. The respondents, on the other hand, argued that consolidation might lead to substantial delays and procedural complications.

In its reasoning, the court examined the nature of the proceedings and the potential benefits of consolidation. It found that while the proceedings shared a common factual basis and involved the same witnesses, the separate claims were distinct in their legal characterisation and potential remedies. The court acknowledged the potential for saving time and reducing inconvenience but concluded that the alternative of separate trials would better serve the interests of justice, particularly given the different stages of advancement in each proceeding. The court ultimately denied the application for consolidation, highlighting the need for tailored trial management for each case.

No orders were made to consolidate the proceedings. The court directed the parties to continue with their respective trials, emphasising the importance of addressing each claim's unique aspects.

Orders