Kyriacou v Raphis Securities Pty Ltd (No 2) - [2022] NSWSC 339

Supreme Court

New South Wales

Medium Neutral Citation: Kyriacou v Raphis Securities Pty Ltd (No 2) [2022] NSWSC 339
Hearing dates: On the papers
Decision date: 25 March 2022
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Order that the first and second respondents to the amended notice of motion dated 25 January 2022 and filed in Court on 2 February 2022 (the consolidated motion) pay 25% of the costs of the plaintiffs in the Raphis Proceeding of and incidental to the consolidation motion, such costs to be payable on the ordinary basis.
2.   Order that the plaintiffs in the Raphis Proceeding pay the costs of the ninth and tenth respondents to the amended notice of motion filed on 24 November 2021 (the amendment motion) limited to the costs of and incidental to preparation for the amendment motion (but not their attendance in court on 2 February 2022).
3.   Order that the plaintiffs in the Raphis Proceeding pay the costs of each of: the third respondent to the consolidated motion; the ninth and tenth respondents to the consolidated motion; and the fourteenth, fifteenth, seventeenth and eighteenth respondents to the consolidated motion, being the costs of and incidental to the consolidated motion, such costs to be payable on the ordinary basis.

Catchwords:
COSTS – Party/Party – General rule that costs follow the event – Application of the rule and discretion

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56, 98(1)
Uniform Civil Procedure Rules 2005 (NSW) r 42.1

Cases Cited:
Khoury v Sidhu [2011] FCA 857
Kyriacou v Raphis Securities Pty Ltd [2022] NSWSC 196
Petar v Macedonian Orthodox Community Church St Pekta Inc (No 2) [2007] NSWCA 142

Category: Costs
Parties: George Kyriacou (First Plaintiff on the Notice of Motion)
Filomena 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 Trustee Company Limited (Thirteenth Respondent to the Notice of Motion)
Raphis Securities Pty Ltd (Fourteenth Respondent to the Notice of Motion)
Somersby Aust Pty Ltd (Fifteenth Respondent to the Notice of Motion)
Shoebill Pty Ltd (Sixteenth Respondent to the Notice of Motion)
Sam Cassaniti (Seventeenth Respondent to the Notice of Motion)
CB Cuckoo Pty Ltd (Eighteenth Respondent to the Notice of Motion)
VHM Asset Holdings Pty Ltd (Nineteenth Respondent to the…

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.

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Details

Case: [2022] NSWSC 339
Decision Date: 25 March 2022

CaseChat Overview and Summary

The case of Kyriacou v Raphis Securities Pty Ltd (No 2) involved the plaintiff, Mr. Kyriacou, who sought costs from the defendant, Raphis Securities Pty Ltd, following a legal dispute. The matter was heard in the Supreme Court of New South Wales. Mr. Kyriacou had previously succeeded in a claim against the defendant for breach of fiduciary duty, and the court was now tasked with determining the costs incurred during the proceedings.

The primary legal issue before the court was whether the general rule that costs follow the event should apply, and if so, the extent of the costs to be awarded. The court had to consider the discretion it had in awarding costs, particularly given the nature of the proceedings and the conduct of the parties. The court needed to balance the principle that costs should follow the event with the need to avoid an unjust result.

The court determined that the general rule should apply, meaning that the prevailing party was entitled to costs. However, it exercised its discretion to limit the amount of costs awarded. The court considered the complexity of the case, the conduct of both parties, and the need to avoid an unjust outcome. Ultimately, the court concluded that the costs should be apportioned in a way that reflected the overall fairness of the proceedings, resulting in a reduced costs order for the plaintiff. The court's decision underscored the importance of judicial discretion in ensuring that the costs orders are just and equitable.

Orders