Malouf v Davoren-Whereat - [2025] NSWSC 133

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
NSW Land and Housing Corporation v DJ's Home and Property Maintenance Pty Ltd (in liquidation) [2013] NSWSC 1167

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:
D Eardley (Plaintiff/First Respondent)
C Marshall (Defendant/Applicant)
J Rogers (Second Respondent)
Solicitors:
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

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…

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 Malouf v Davoren-Whereat

Details

AGLC: Malouf v Davoren-Whereat [2025] NSWSC 133
Case: [2025] NSWSC 133
Decision Date: 26 February 2025

CaseChat Overview and Summary

The case of Malouf v Davoren-Whereat involved the plaintiff, Malouf, and the defendants, Davoren-Whereat. The dispute centred on a motion for an interpleader, which was brought by one of the defendants seeking clarification on the rightful owner of certain funds held in court. The plaintiff argued that the defendant had incurred costs in bringing the interpleader motion, and sought to recover these costs from the funds in court. The matter was heard in the Federal Court of Australia.

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