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Spathis v Nanos (No 2)

Spathis v Nanos (No 2)

Case [2008] NSWSC 470 13 May 2008

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CITATION: Spathis v Nanos (No 2) [2008] NSWSC 470

HEARING DATE(S): 13 May 2008

JURISDICTION: Equity

JUDGMENT OF: Jagot AJ

EX TEMPORE JUDGMENT DATE: 13 May 2008

CATCHWORDS: COSTS - s 66G application - whether circumstances displaced usual approach to costs of both parties out of proceeds of sale - plaintiff sought order that defendant pay plaintiff's costs on indemnity or party-party basis - order made for plaintiff's costs only to be paid out of the proceeds of sale

LEGISLATION CITED: Conveyancing Act 1919

CASES CITED: Kardos v Sarbutt (No 2) [2006] NSWCA 2006
Mckay v Mckay (Costs) [2008] NSWSC 256
Vollmer v Hauber Davidson (2007) DFC 95-400

PARTIES:
PLAINTIFF
Gerasimos Spathis
DEFENDANT
Amalia Nanos

FILE NUMBER(S): SC 4498 of 2007

COUNSEL: Mr I E Davidson - plaintiff
Mr S W Climpson - defendant

SOLICITORS: JSM Lawyers - plaintiff
James Lawyers - defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Jagot AJ

13 May 2008

4498 of 2007 GERASIMOS SPATHIS v AMALIA NANOS

JUDGMENT

1 HER HONOUR: This is an issue of costs arising from the making of orders under s 66G of the Conveyancing Act 1919. In the summons as originally filed by the plaintiff, the plaintiff sought an order that the plaintiff’s, but explicitly not the defendant’s costs, be paid out of the proceeds of sale.

2 There is no disagreement between the parties with respect to principle. They have taken me to the decision of Kardos v Sarbutt (No 2) [2006] NSWCA 206, in particular, [28] to [31]. In [28] the Court observed that in proceedings under the Conveyancing Act, s 66G, costs were usually paid out of the proceeds of sale, the rationale being that the costs of such an application are incidental to ownership. And in [31] the Court observed that the substantial success of proceedings was “not to be judged merely by the circumstance that a plaintiff obtains an adjustment in his or her favour. It involves an evaluation of the outcome, in the light of the forensic and negotiating positions of the parties, such that it can be said that one party has been clearly more successful than the other…”.

3 To similar effect in Mckay v Mckay (Costs) [2008] NSWSC 256 at [7], Brereton J observed that in “straightforward s 66G applications, the prima facie rule is that the costs come out of the proceeds of sale, although that is not necessarily so where the matter is contested and issues of equitable entitlement fall to be decided.” In that matter his Honour drew an analogy between s 66G and partnership arrangements. To similar effect is the observation in Vollmer v Hauber Davidson (2007) DFC 95-400, specifically at [21] through to [23].

4 The plaintiff submits that there should be an order for costs in these proceedings, either on an indemnity basis or on the usual order as to costs basis or, at least, the original costs order sought in paragraph 4(f) of the summons. The plaintiff says…

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 Spathis v Nanos (No 2)

Details

AGLC: Spathis v Nanos (No 2) [2008] NSWSC 470
Case: [2008] NSWSC 470
Decision Date: 13 May 2008

CaseChat Overview and Summary

The defendants, the Nanos, applied to the court for an order that the plaintiff, Spathis, pay their costs on an indemnity or party-party basis, pursuant to section 66G of the relevant legislation. The primary dispute arose from an order that the property in question be sold, and that the proceeds of sale be divided between the parties. The plaintiff had sought an order that the defendants pay their costs on an indemnity or party-party basis. The court was required to determine whether the circumstances of the case justified deviating from the usual approach to costs and whether the plaintiff's costs should be paid out of the proceeds of sale.

The court considered the legal principles surrounding costs in property disputes, particularly focusing on the circumstances that might justify departing from the usual approach of each party bearing their own costs. It was noted that the defendants had not succeeded on any of their claims, and the plaintiff had achieved a significant victory in securing an order for the sale of the property. The court found that the circumstances did justify a departure from the usual approach to costs, as the plaintiff's success in the matter was substantial. The court further determined that it was appropriate for the plaintiff's costs to be paid out of the proceeds of sale, given the defendants' failure to succeed on any of their claims.

Accordingly, the court made an order that the plaintiff's costs were to be paid out of the proceeds of sale, but did not order the defendants to pay the plaintiff's costs on an indemnity or party-party basis. The court's decision was based on the significant success achieved by the plaintiff and the defendants' lack of success on any of their claims. The outcome ensured that the plaintiff's costs were recovered from the proceeds of the sale, reflecting the substantial nature of the plaintiff's victory in the dispute.

Orders