Xirakis v Xirakis

[2025] ACTSC 376

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Xirakis v Xirakis

Citation: 

[2025] ACTSC 376

Hearing Date: 

On the papers

Decision Date: 

21 August 2025

Reasons Date:

26 August 2025

Before:

Muller AJ

Decision: 

See [11]

Catchwords: 

CIVIL PROCEDURE – PRACTICE AND PROCEDURE – where plaintiff under legal disability – settlement of proceedings – court approval of settlement required – whether settlement in best interests – settlement approved

Legislation Cited: 

Court Procedures Rules 2006 (ACT), r 282

Cases Cited: 

Elliott v Diener (1978) 21 ACTR 21

Ryan v Larkham [2022] ACTSC 151

Veal (by his next friend Watson) v Hehir [2018] ACTSC 330

Parties: 

Liana Xirakis (by her litigation guardian George Xirakis) ( Plaintiff)

Nicholas Xirakis ( First Defendant)

Peter Litsakos as trustee for the Litsakos Family Trust (Second Defendant)

Meyer Vandenberg Pty Ltd (Third Defendant)

Representation:

Solicitors

Colquhoun Murphy ( Plaintiff)

Kamy Saeedi Law (First Defendant)

Self-represented ( Second Defendant)

Wotton Kearney (Third Defendant)

File Number:

SC 83 of 2025

MULLER AJ: 

Introduction

1․The plaintiff applies to the Court for approval of a settlement she has reached with the defendants.

2․The proceedings relate to the plaintiff's home at Watson in the ACT that was, prior to March 2018, unencumbered. She alleges that, unknown to her, and without her authority, the defendants were involved in the procuring of some financial accommodation that was secured over her property, culminating in the lender pursuing her for recovery of unpaid loan monies. The plaintiff alleges that she suffered loss and damage as a result.

3․The plaintiff is currently 87 years old and was diagnosed with dementia in December 2019. She is thus a person under a legal disability and is represented in the proceedings by her son, George Xirakis, who is her litigation guardian.

4․The plaintiff claims damages:

(a)Against the first defendant, for breach of fiduciary duty;

(b)Against the second defendant, for unconscionable conduct in the circumstances of the provision of the financial accommodation; and

(c)Against the third defendant, for breach of its professional services retainer.

5․The Court was asked to approve a settlement agreement reached between the parties whereby the defendants are to pay to the plaintiff the sum of [redacted]. On 21 August 2025, I made orders approving the settlement. My reasons for making those orders now follow.

Relevant principles

6․Rule 282 of the Court Procedures Rules 2006 (ACT) provides:

282Person with legal disability—approval of settlement etc

(1)In a proceeding (or proposed proceeding) in which there is a claim for an amount (including an amount of damages) by or on behalf of a person with a legal disability, a settlement or compromise may only be entered into, and an amount paid into court may only be accepted, with the court’s approval.

(2)The application for the court’s approval must be made by originating application, unless the application is made in a proceeding that has already been started.

Note 1Div 2.2.3 (Originating applications) contains provisions about the content of originating applications, the filing and service of originating applications, etc.

Note 2Pt 6.2 (Applications in proceedings) applies to an application for the court’s approval in a proceeding that has already been started.

(3)If the court approves a settlement, compromise or acceptance of an amount paid into court, the court may enter judgment for the amount of the settlement, compromise or payment into court.

(4)This rule applies whether the person is suing alone or with another party.

7․In Ryan v Larkham [2022] ACTSC 151, McCallum CJ observed at [4] (citing Veal (by his next friend Watson) v Hehir [2018] ACTSC 330):

… the overriding principle in exercising the discretion whether to approve a settlement is for the Court to consider whether the proposed compromise is or is not beneficial to the interests of the person under the incapacity and that that decision is uniquely one for the Court and not the parties.

8․As distinct from the court, the role of legal advisors representing the plaintiff on an application for approval was described by Blackburn CJ in Elliott v Diener (1978) 21 ACTR 21 at 22:

The solicitor says in his affidavit that he has considered what would be for the benefit of the infant; but that is not enough. The test of benefit to the infant is not whether the sum is adequate and reasonable. The matter is not to be [decided] by the plaintiff's own solicitor as if he were a judge awarding damages after a contested hearing. The question which counsel or solicitor for the plaintiff has to decide, when considering a compromise of an infant's claim, is whether the prospect of getting a greater sum by rejecting the present offer is good enough to outweigh, significantly, the risk of not getting any more. There may be various factors in such a decision, sometimes present and sometimes not; for example, the importance of termination of proceedings may be great for some plaintiffs and insignificant for others. The question of costs, also, will usually be significant. The decision is peculiarly one for experienced counsel and solicitors.

9․The role for the legal advisors is thus one requiring the identification and weighing of factors underpinning the best interest considerations. Those factors will be different in each case and will often go beyond a simple analysis of the pleaded issues of contention.

Documentation

10․I have the benefit of a confidential advice prepared by Ms Amelia Avery-Williams, counsel for the plaintiff, in respect of the suitability of the settlement. Having read the advice closely, I am satisfied that the proposed settlement is one that is in the best interests of the plaintiff, and it is therefore in the interests of justice that the settlement be approved.

Orders

11․For the reasons given above, I made the following orders:

(1)Pursuant to r 282 of the Court Procedures Rules 2006 (ACT), the Court approves the settlement agreed between the parties, set out in the Deed of Release (the Deed), a copy of which is Exhibit ML16 to the affidavit of Mabel Mei Shi Lim sworn on 7 August 2025.

(2)The settlement sum of [redacted] is to be paid into the trust account of Colquhoun Murphy in accordance with the terms of the Deed.

(3)Interest is not to run on the settlement sum if paid within 28 days of receipt by the defendants of a sealed copy of these orders.

(4)The affidavit of Mabel Mei Shi Lim dated 7 August 2025, together with its exhibits, is to be placed in an envelope, sealed and the envelope marked “not to be accessed without an order of a Judge”.

(5)The address of Ms Amelia Avery-Williams of counsel dated 7 August 2025 is to be marked “Exhibit 1”, placed in an envelope, sealed and the envelope marked “not to be accessed without an order of a Judge”.

(6)There is no order as to costs.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller.

Associate:

Date: