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 Papas contended that Mr and Mrs Grave should pay all costs occasioned by the further submissions and any further hearing, regardless of the outcome of the proceedings in this Court. Mr and Mrs Papas said that there was no need to re-list the matter and that they did not seek any further oral hearing.

1. However, at the behest of Mr and Mrs Grave, the matter was re-listed for further oral argument on 19 July 2013. Mr B W Rayment QC represented Mr and Mrs Grave at the further hearing. In the course of that hearing, senior counsel for Mr and Mrs Papas repeated the submission that Mr and Mrs Grave should pay the costs of the additional hearing time in any event. Senior counsel for Mr and Mrs Grave made no submissions to the contrary, either in writing or orally.

1. Mr and Mrs Papas now contend that the additional costs relating to the further hearing arose from Mr Kalyk's failure to consider his position. That question arose only once prompted by the Court in the course of the first hearing. They contend that it would be unfair for them to bear Mr and Mrs Grave's costs of the further hearing. In the reasons of 23 September 2013, the Court did not separately address the question of the costs of the further hearing. Mr and Mrs Papas suggest that an inference is open that the Court overlooked the question, since no reasons were given for the costs order that was made.

1. Mr and Mrs Grave resist the present application. Their principal contention is that the ambit of the dispute that arose on and after 29 May 2013 extended to a number of not uncomplicated matters, including the question of leave, the consequences of Mr and Mrs Papas not having sought leave to appeal from the orders made by Ward J, the consequences of their failure to seek an undertaking as to damages pursuant to leave reserved by Ward J, the consequences of the decision of the High Court in State of New South Wales v Kable [2013] HCA 26; 298 ALR 144, the utility of granting leave and the general merits of the application.

1. It is unfortunate that costs were incurred in connection with the additional hearing. Following the hearing on 29 May 2013, the Court raised a further question as to the possible basis on which Mr and Mrs Papas may not have required leave to appeal. The Court had the benefit of argument from the parties in relation to that question. However, the need for a further hearing was prompted by Mr Kalyk's position, as counsel for Mr and Mrs Grave: if Mr Kalyk had not appeared on the appeal, there would have been no need for a further hearing. In all the circumstances, it is appropriate to vary the orders made on 23 September 2013 to provide that there be no order as to the costs of the proceedings after 29 May 2013. The motion of 30 September 2013 should be otherwise dismissed, with no order as to costs.

1. SACKVILLE AJA: I agree with Emmett JA.

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Decision last updated: 29 November 2013