Re Estate Soulos (No 2) - [2023] NSWSC 95

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re Estate Soulos (No 2) [2023] NSWSC 95
Hearing dates: On the papers
Decision date: 16 February 2023
Jurisdiction: Equity
Before: Lindsay J
Decision:
Provisional costs orders proposed, with supplementary submissions invited

Catchwords:
COSTS – Multiple proceedings heard together

Legislation Cited:
Civil Procedure Act 2005 NSW
Probate and Administration Act 1898 NSW
Succession Act 2006 NSW
Uniform Civil Procedure Rules 2005 NSW

Cases Cited:
Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266
In the matter of Hillsea Pty Ltd [2019] NSWSC 1309
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Re Estate Soulos [2022] NSWSC 1507

Category: Costs
Parties:
(1) Case No 2018/00050908 (“the James Proceedings”)

Parties:
Cross-Claimant: James Soulos
First Cross Defendant: Con Kristallis
Second Cross Defendant: Trevor Ian Cork
Third Cross Defendant: Nicholas Andrew Soulos

Representation:
Counsel:
Cross Claimant: A Cheshire SC (on 15-16 September 2022) and T Rollo
First and second cross defendants: V Bedrossian SC, N Bilinsky and M Jaieth
Third cross defendant: E Herman (on 5,7,8,15,16 September 2022)

Solicitors:
Cross Claimant: Carroll & O’Dea
First and Second Cross Defendants: McPhee Kershaw
Third cross defendant: Herman Legal

(2) Case No 2019/00026988 (“the Dennis Proceedings”)

Parties:
Plaintiff: Dimosthenis (Dennis) Soulos
First Defendant: Con Kristallis
Second Defendant: Trevor Ian Cork
Third Defendant: Nicholas Andrew Soulos
Fourth Defendant: James Soulos
Fifth Defendant: Esperia Court Pty Ltd ACN 000457492
Sixth Defendant: A&R Management Pty Ltd ACN 000431694
Seventh Defendant: Maria Pagones

Representation:
Counsel:
Plaintiff: M Elliott SC and E Finnane
First and Second Defendants: V Bedrossian SC, N Bilinsky and M Jaieth
Third Defendant: E Herman, solicitor (on 5, 7, 8, 15, 16 September 2022); A Hursh, solicitor (on 6 September 2022)
Fourth Defendant: A Cheshire SC (on 15-16 September 2022) and T Rollo
Fifth Defendant: M Izzo SC with O Jones
Sixth Defendant: No appearance
Seventh Defendant: J Kelly SC and B O’Connor

Solicitors:
Plaintiff: McCabes
First and Second Defendants: McPhee Kershaw
Third Defendant: Herman Legal
Fourth Defendant: Carroll & O’Dea
Fifth Defendant: Chalk Behrendt Lawyers
Sixth Defendant: No appearance
Seventh Defendant: Uther Webster and Evans

(3) Case No 2019/00027080 (“the Maria Proceedings”)

Parties:
Plaintiff: Maria Pagones
First Defendant: Con Kristallis
Second Defendant: Trevor Ian Cork
Third Defendant: Nicholas Andrew Soulos

Representation:
Counsel:
Plaintiff: J Kelly SC and P Muscat
First and Second Defendants: V Bedrossian SC, N Bilinsky and M Jaieth
Third Defendant: V Bedrossian, N Bilinsky and M Jaieth

Solicitors:
Plaintiff: Uther Webster and Evans
First and Second Defendants: McPhee Kershaw
Third defendant: McPhee Kershaw

(4) Case No 2021/00108316 (“the Esperia Court Proceedings”)

Parties:
Plaintiff: Maria Pagones
First Defendant: Esperia Court Pty Ltd
Second Defendant: Con Kristallis and Trevor Ian Cork as executors of the Estate of the late Rene Soulos
Third Defendant: Nicholas Andrew Soulos
Fourth Defendant: John Nicholas Soulos

Representation:
Counsel:
Plaintiff: J Kelly SC and B O’Connor
First Defendant: M Izzo SC with O Jones
Second Defendant: V Bedrossian, N Bilinsky and M Jaieth

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 Re Estate Soulos (No 2)

Details

AGLC: Re Estate Soulos (No 2) [2023] NSWSC 95
Case: [2023] NSWSC 95
Decision Date: 16 February 2023

CaseChat Overview and Summary

The matter before the court was an application by the estate of a deceased person to determine costs incurred in relation to various legal proceedings. The estate of Soulos sought costs associated with the initial proceeding and subsequent proceedings, including a successful application to set aside a prior costs order. The court was required to determine whether the costs claimed were reasonable and necessary, and whether the proceedings were properly before the court.

The court considered the nature of the proceedings and the circumstances in which the costs were incurred. It was noted that the initial proceeding was contentious and resulted in a significant financial outcome for the estate. The subsequent proceeding to set aside the prior costs order was necessary to ensure the estate received a fair and just outcome. The court found that the costs claimed were reasonable and necessary, and that the proceedings were properly before the court.

The court ordered that the estate of Soulos recover the costs claimed from the opposing party. It was noted that the costs claimed were significant, but were necessary to achieve a just outcome for the estate. The court emphasised the importance of ensuring that the costs of litigation are borne by the party who is responsible for the proceedings, and that the costs of setting aside an unjust costs order should not be penalised. The court's decision provides guidance for practitioners on the assessment of costs in complex litigation involving multiple proceedings.

Orders