Photios v Photios (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Photios v Photios (No 2) [2019] NSWCA 209

Hearing dates:

On the papers

Date of orders:

26 August 2019

Decision date:

26 August 2019

Before:

Bell P at [1];
Gleeson JA at [34];
Leeming JA at [35]

Decision:

1.   Vary order 2 of the orders made on 27 June 2019 by adding as a further condition on the grant of leave to amend the amended statement of cross-claim the condition that the Appellant pay the mediator’s costs of any further mediation including the costs of hire of any mediation rooms.   

 

2.   Order that the Respondent pay the Appellant’s costs of the application for leave to amend before the primary judge and the costs of the application for leave to appeal up until 12 March 2019 on a party-party basis.

 3.   Order that the Respondent be entitled to an indemnity from the Estate of Henry Basil Photios for the costs referred to in Order 2 and for her own costs in relation to the application for leave to amend before the primary judge and of the costs in this Court.

Catchwords:

COSTS – application for payment of costs on indemnity basis from date of an offer – relevant principles considered

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 59

Cases Cited:

Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Zilotto v Hakim [2013] NSWCA 359

Category:

Costs

Parties:

David Peter Photios (Appellant)
Lana Clarice Photios (in her capacity as Executor of the Estate of Henry Basil Photios) (Respondent)

Representation:

Counsel:
M Sneddon (Appellant)
JA Trebeck (Respondent)

  Solicitors:   
Bartier Perry (Appellant)
Beswick Lynch (Respondent)

File Number(s):

2018/318902

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2018] NSWSC 1414

Date of Decision:

20 September 2018

Before:

Rees J

File Number(s):

2016/268776

Judgment

1. BELL P: On 27 June 2019, this Court delivered its reasons for judgment in Photios v Photios [2019] NSWCA 158 (the principal judgment). In its judgment, the Court allowed an appeal by Mr David Peter Photios (the Appellant) from a judgment of Rees J sitting in the Equity Division of the Supreme Court of New South Wales. Her Honour had refused the Appellant leave to amend his amended statement of cross-claim in proceedings concerning a contested will of his late father, Henry Basil Photios (the Deceased) in order to raise a question as to the Deceased’s capacity at the time of execution of the will that had been admitted to probate in common form. The Appellant’s step-mother and the Deceased’s second wife, Mrs Lana Clarice Photios, was the respondent in those proceedings in her capacity as executor of the Deceased’s estate (the Respondent).

2. In addition to allowing the appeal, the Court granted the Appellant leave to amend his amended…