Supreme Court
New South Wales
Medium Neutral Citation: Malouf v Davoren-Whereat [2025] NSWSC 133 Hearing dates: 26 February 2025 Date of orders: 26 February 2025 Decision date: 26 February 2025 Jurisdiction: Common Law Before: Chen J Decision: (1) Order, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), that the plaintiff and second respondent pay, and are equally and severally liable for, the defendant’s (Kurt Davoren-Whereat’s) costs of and incidental to the interpleader notice of motion filed 28 October 2024 in the gross sum of $31,150.
(2) Order that the costs payable to the defendant under order 1, above, be paid from the sum paid into Court pursuant to order 2 made on 28 November 2024.
(3) Note that upon payment pursuant to order 2, the second respondent is liable to the plaintiff in the sum of $15,575.
(4) Otherwise, no order as to the costs of the respondents.
Catchwords: COSTS – Party/Party – Costs orders in interlocutory proceedings – where application made by judgment debtor for gross sum costs orders following interpleader motion – whether interpleader entitled to complete indemnity of costs from funds in court – no issue of principle – gross sum costs order made
COSTS – Party/Party – whether delay occasioned in bringing interpleader motion – lengthy email correspondence between parties – persistent correspondence from plaintiff’s former tutor to judgment debtor requesting delay of filing of interpleader motion – “disentitling conduct” – whether judgment debtor promptly brought interpleader motion – no finding of disentitling conduct by judgment debtor – both respondents responsible for unreasonable incurrence of costs – apportionment of judgment debtor’s costs between respondents – respondents found equally and severally liable for judgment debtor’s costs
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: AA v PD (No 2) [2023] NSWSC 945
Connor John Malouf by his tutor Sam Malouf v Kurt Davoren-Whereat [2024] NSWSC 861
Firth v Centrelink (2002) 55 NSWLR 451
McPherson, Thom & Co v Sandhurst and Northern District Trustees, Executors and Agency Co Ltd [1929] VLR 295
Category: Procedural rulings Parties: Connor Malouf by his tutor Sam Malouf (Plaintiff/First Respondent)
Kurt Davoren-Whereat (Defendant/Applicant)
George Mavrakis trading as Mavrakis & Associates Lawyers (Second Respondent)
Veritas Law Firm Pty Ltd (Third Respondent)Representation: Counsel:
Solicitors:
D Eardley (Plaintiff/First Respondent)
C Marshall (Defendant/Applicant)
J Rogers (Second Respondent)
S & R Lawyers (Plaintiff/Respondent)
Moray & Agnew (Defendant/Applicant)
ICL Lawyers (Second Respondent)
Veritas Law Firm Pty Ltd (Third Respondent)
File Number(s): 2020/00014879 Publication restriction: Nil
JUDGMENT
Introduction
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This is an application by Kurt Davoren-Whereat (‘the defendant’) for a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) (‘the CPA’) for costs of and incidental to his notice of motion filed 28 October 2024 which sought relief by way of interpleader under r 43.2 of the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’) (‘the interpleader…
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- AGLC
- Malouf v Davoren-Whereat [2025] NSWSC 133
- Case
- [2025] NSWSC 133
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the interpleader was entitled to complete indemnity of costs from the funds in court and whether there was any conduct by the defendants that could be considered disentitling. Additionally, the court had to consider whether the defendants were jointly and severally liable for the costs incurred by the defendant who brought the interpleader motion.
The court found that there was no issue of principle that precluded the interpleader from obtaining complete indemnity of costs from the funds in court. The court also considered the extensive email correspondence between the parties, which included persistent requests from the plaintiff’s former tutor to delay the filing of the interpleader motion. However, the court found no evidence of disentitling conduct by the defendant who brought the interpleader motion, and both respondents were held to be responsible for the unreasonable incurrence of costs. As a result, the court apportioned the defendant’s costs between the respondents, finding them equally and severally liable for the costs incurred.
The final orders of the court included a gross sum costs order in favour of the defendant who brought the interpleader motion, with both respondents being held liable for those costs. The court emphasised the importance of prompt action in bringing interpleader motions and the need for parties to avoid unnecessary delays that could lead to increased costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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