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Vardas v Coshott (No 2)

Vardas v Coshott (No 2)

Case [2017] NSWSC 425 19 April 2017

Res Judicata

Costs

Compensatory Damages

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Vardas v Coshott & Ors (No 2) [2017] NSWSC 425
Hearing dates: 24 February 2017
Date of orders: 19 April 2017
Decision date: 19 April 2017
Jurisdiction: Equity
Before: Slattery J
Decision:
Orders made for costs on an indemnity basis. Gross sum costs order made in the sum of $60,000.

Catchwords: FINAL RELIEF AND COSTS – judgment delivered declaring defendants in breach of Deed of Release by commencing a costs assessment – successful plaintiff seeks indemnity costs and a gross sum costs – whether indemnity costs should be awarded in the circumstances – whether a gross sum costs order should be made in the circumstances.
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 98(4)(c)
Legal Profession Act (NSW) 1987 (repealed)
Legal Profession Act (NSW) 2004 (repealed)
Legal Profession Uniform Law Application Act (NSW) 2014
Uniform Procedure Rules (NSW) 2005, R 42.1
Cases Cited: Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Harrison v Schipp (2002) 54 NSWLR 738
Harrison v Schipp [2001] NSWCA 13
Vardas v Coshott & Ors [2017] NSWSC 29
Velissaris v Fitzgerald [2008] VSCA 152
Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd (No. 3) [2010] NSWSC 1479
Category: Costs
Parties: 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:

Plaintiff: J.A. Watson

Defendants: O. Jones

Solicitor:

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

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

Judgment

The Court delivered its first judgment in these proceedings on 6 February 2017: Vardas v Coshott & Ors [2017] NSWSC 29. In its first judgment, the Court found that the plaintiff, Mr Vardas was successful in his application to restrain the defendants, the Coshotts, from taking any further steps upon a costs assessment that they had initiated. The Court made orders giving effect to this restraint and declared that by commencing the costs assessment, the Coshotts breached the Deed of Release (Deed) signed by the parties in 2007.
In the first judgment the Court ordered that the Coshotts “jointly and severally indemnify the plaintiff for all costs and expenses incurred by the plaintiff as a result of the costs assessment” (Order 3).
The Court also ordered that any motions for special costs orders would be returnable on 20 February 2017 and gave liberty to the parties to supply to the Court submissions dealing with any supplementary costs issues in advance of any costs argument.
On 17 February 2017, Mr Vardas filed a Notice of Motion (“the Motion”) and written submissions, seeking that the Coshotts to pay Mr Vardas a gross sum of $60,000 by way of indemnity costs under Civil Procedure Act 2005 (NSW) (“CPA”), s 98 (4)(c), within 28 days.…

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 (No 2)

Details

AGLC: Vardas v Coshott (No 2) [2017] NSWSC 425
Case: [2017] NSWSC 425
Decision Date: 19 April 2017

CaseChat Overview and Summary

In Vardas v Coshott, the plaintiff sought relief against the defendants for their breach of a Deed of Release and the costs incurred as a result. The case was heard in a court that adjudicated on the interpretation of the Deed of Release and the associated costs. The central legal issues revolved around whether the defendants had indeed breached the terms of the Deed of Release and, if so, whether the plaintiff was entitled to indemnity costs and a gross sum costs order under the circumstances.

The court examined the language of the Deed of Release and the context in which it was executed to determine the parties' intentions and obligations. It found that the defendants' actions were in clear violation of the terms of the Deed, thereby breaching the agreement. Regarding the costs, the court acknowledged the plaintiff's successful litigation and the substantial costs incurred. The court also considered the principle of indemnity costs, which aims to ensure that a successful party is compensated for their legal expenses, and the appropriateness of a gross sum costs order in light of the defendants' breach and the plaintiff's success.

The court concluded that the defendants' breach warranted indemnity costs, and it granted the plaintiff such costs, ensuring that they were fully compensated for their litigation expenses. Additionally, the court deemed it appropriate to make a gross sum costs order, reflecting the defendants' culpability and the plaintiff's success. This comprehensive approach aimed to deter similar breaches in the future and provide a just outcome for the prevailing party.

The final orders included a declaration that the defendants had breached the Deed of Release, an award of indemnity costs to the plaintiff, and a gross sum costs order in favour of the plaintiff. The court's decision provided clarity on the interpretation of the Deed of Release and the implications of breaching such agreements, particularly in relation to costs orders.

Orders