Papas v Grave (No 2)

[2013] NSWCA 398

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Papas v Grave (No 2) [2013] NSWCA 398

Hearing dates:

On the papers

Decision date:

29 November 2013

Before:

Basten JA at [1];
Emmett JA at [2];
Sackville AJA at [9].

Decision:

1. Order 4 made on 23 September 2013 be varied to read as follows:

"4. The appellants are to pay the

respondents' costs in this Court up to

and including 29 May 2013."

2. The appellants' motion filed on 30 September 2013 be otherwise dismissed.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

COSTS - appeal costs - costs of further hearing

Cases Cited:

Papas v Grave [2013] NSWCA 308
State of New South Wales v Kable [2013] HCA 26; 298 ALR 144

Category:

Principal judgment

Parties:

Peter Papas (First Appellant)
Tami Papas (Second Appellant)
Warwick Grave (First Respondent)
Julianne Grave (Second Respondent)

Representation:

Counsel:
R Newlinds SC; S Nash (appeared for First and Second Appellants)
FG Kalyk (appeared for First and Second Respondents on 29 May 2013)
BW Rayment QC (appeared for First and Second Respondents on 19 July 2013)
Solicitors:
Stephen Wawn & Associates (First and Second Appellants)
Evangelos Patakas (First and Second Respondents)

File Number(s):

2012/396878

 Decision under appeal 

Citation:

[2012] NSWSC 1461

Date of Decision:

2012-11-23 00:00:00

Before:

Windeyer J

File Number(s):

2011/301407

Judgment

1. BASTEN JA: I agree with Emmett JA.

1. EMMETT JA: On 23 September 2013, for reasons delivered on that day (see Papas v Grave [2013] NSWCA 308), the Court made orders granting leave to appeal to the extent necessary and dismissing the appeal with costs. By notice of motion filed on 30 September 2013, the appellants, Mr and Mrs Papas, seek a variation of the order that they pay the costs of the respondents, Mr and Mrs Grave.

1. The appeal was originally set down for hearing for one day on 29 May 2013. In the course of the hearing of the appeal on that day, it became apparent that the contentions advanced on behalf of Mr and Mrs Papas placed Mr F G Kalyk, counsel for Mr and Mrs Grave, in a somewhat embarrassing position in that he was required to defend his own conduct before Ward J. In the light of the position of Mr Kalyk, Mr and Mrs Grave were given leave, if so advised, to make further submissions concerning Mr Kalyk's part in the conduct of the case. That leave was taken up and the parties made further written submissions concerning Mr Kalyk's position. They also made additional submissions on whether leave to appeal was required.

1. In their further written submissions, Mr and Mrs…