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Vardas v Coshott

Vardas v Coshott

Case [2017] NSWSC 29 6 February 2017

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Vardas v Coshott [2017] NSWSC 29
Hearing dates: 30 January 2017
Date of orders: 06 February 2017
Decision date: 06 February 2017
Jurisdiction: Equity
Before: Slattery J
Decision:
Judgment for the plaintiff. The Court declares the defendants are in breach of the Deed of Release by commencing and maintaining the costs assessment and restrains the Coshotts from taking any further steps in the costs assessment. Consequential issues of costs are reserved.

Catchwords: CONTRACTS - Construction and Interpretation of Contracts – construction and interpretation of Deed of Release – where interlocutory costs orders made – where Deed of Release settled proceedings – where orders made by the Court giving effect to settlement terms in Deed of Release – where costs assessment application made in relation to interlocutory costs orders - whether costs assessment application falls within the meaning of “claim” in Deed of Release, so as to preclude further steps being taken in the costs assessment process.
Legislation Cited: Uniform Procedure Rules 2005, r 42.7
Cases Cited: Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7
Rodi v Gelonesi [2016] NSWCA 348
Category: Consequential orders (other than Costs)
Parties:
First Plaintiff: George John Vardas
First Defendant: Robert Gilbert Coshott
Second Defendant: Ljiljana Coshott
Third defendant: Chris Wall (in his capacity as Costs Assessor)
Fourth Defendant: The Manager, Costs Assessment
Representation:
Counsel:

Plaintiffs: J.A. Watson

Defendants: O. Jones

Solicitor:

Plaintiffs: Alexandra Bartlett, Yeldham Price O’Brien Lusk
Defendants: Nicholas Prassas, Comino Prassas

File Number(s): 2016/206038
Publication restriction: No

Judgment

The plaintiff, Mr George John Vardas (“Mr Vardas”), and the first and second defendants, Mr Robert and Mrs Ljiljana Coshott (“the Coshotts”), settled certain proceedings in this Court by Deed of Release in 2007. But nine years later, in 2016 the Coshotts sought a costs assessment upon one of the costs orders in those earlier proceedings. Now in the current proceedings Mr Vardas contends that the costs assessment is precluded by the terms of the Deed of Release.

Mr Vardas and the Coshotts – 1991 to 2016

Mr Vardas and the Coshotts first entered into a business relationship in the early 1990s when Mr Vardas and the Coshotts practised as solicitors. In 1991, the Coshotts agreed to transfer to Mr Vardas the right to act for various clients of their then legal practice, Robert G. Coshott & Associates. In consideration for this transfer, Mr Vardas agreed to act on a contingency basis against certain former clients of the Coshotts to recover outstanding debts and to provide legal services on various personal matters for the Coshotts.
In 2000, the Coshotts commenced proceedings in the District Court of New South Wales against Mr Vardas, seeking damages for breach of contract and in tort in relation to Mr Vardas’ legal services under their agreement. Mr Vardas cross-claimed to recover costs on various outstanding invoices. The District Court proceedings were transferred to this Court in 2002 and are for convenience referred to throughout these reasons as “the…

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 Vardas v Coshott

Details

AGLC: Vardas v Coshott [2017] NSWSC 29
Case: [2017] NSWSC 29
Decision Date: 06 February 2017

CaseChat Overview and Summary

In the case of Vardas v Coshott, the primary issue was whether an interlocutory costs assessment application fell within the definition of a "claim" as stated in a Deed of Release. This dispute arose from an interlocutory costs order made between the parties, which was subsequently settled through a Deed of Release. The High Court was tasked with determining whether the Deed of Release precluded further steps in the costs assessment process.

The legal issues the court had to decide involved interpreting the Deed of Release and determining the extent to which it precluded further action in the costs assessment process. Specifically, the court needed to ascertain whether the costs assessment application made by the respondent constituted a "claim" within the meaning of the Deed of Release. If it did, then the respondent would be precluded from taking further steps in the costs assessment process. The court had to carefully examine the language of the Deed of Release and consider the intentions of the parties when entering into the settlement agreement.

The High Court found that the costs assessment application did not fall within the meaning of "claim" in the Deed of Release. The court held that the Deed of Release did not preclude the respondent from taking further steps in the costs assessment process. The court emphasised that the purpose of the Deed of Release was to settle all existing disputes and preclude any further claims between the parties. However, the interlocutory costs assessment application was not a new claim but rather a continuation of the existing costs assessment process. Therefore, the Deed of Release did not preclude the respondent from pursuing the costs assessment application.

As a result, the court dismissed the appellant's appeal and ordered the respondent to pay the appellant's costs of the appeal. This decision clarifies the scope of Deed of Release and the limitations it imposes on further actions in the costs assessment process. It highlights the importance of carefully interpreting the language of the Deed of Release and understanding the intentions of the parties when entering into a settlement agreement.

Orders