Zistis v Zistis (No 2) - [2019] NSWSC 227

Supreme Court

New South Wales

Medium Neutral Citation: Zistis v Zistis (No 2) [2019] NSWSC 227
Hearing dates: 4 March 2019
Date of orders: 08 March 2019
Decision date: 08 March 2019
Jurisdiction: Common Law
Before: Schmidt J
Decision:
(1) The Attorney-General for New South Wales pay the plaintiff’s costs, as agreed or assessed, to the extent that they were increased by the intervention of the Attorney-General for New South Wales.
(2) Save for the costs the subject of Order 1, the first defendant pay the plaintiff’s costs of the proceedings on the ordinary basis up to 15 January 2018, and thereafter on an indemnity basis.
Catchwords:
CIVIL PROCEDURE — Hearings — Adjournment application — Where party did not appear to press application — Adjournment application dismissed

COSTS — Party/Party — General rule that costs follow the event — Whether costs should be ordered on an Indemnity basis
COSTS — Party/Party — Orders when proceedings involve multiple parties — Interveners — Where applicant’s costs increased as the result of intervention
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Judiciary Act 1903 (Cth)
Residential Tenancies Act 2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3
Huddart, Parker & Co Pty Ltd v Moorehead (1908) 8 CLR 330
O'Toole v Charles David Pty Ltd (1991) 171 CLR 232; [1991] HCA 14
Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1
Zistis v Zistis [2018] NSWSC 722
Category: Costs
Parties: Steve Zistis (Plaintiff)
George Zistis (First Defendant)
NSW Civil and Administrative Tribunal (Second Defendant)
Attorney-General for New South Wales (Intervener)
Representation:
Counsel:
P Santucci (Plaintiff)
A Mitchelmore (Attorney-General for New South Wales)
Solicitors:
Low Doherty & Stratford (Plaintiff)
Crown Solicitor’s Office (Attorney General for New South Wales)

File Number(s): 2017/153633

Judgment

In May 2018 Latham J gave judgment for Mr Steve Zistis against his brother Mr George Zistis, ordering him to give vacant possession of a property at Kensington, where he was living. Mr George Zistis’ case, that he was entitled to live indefinitely in the property, as the result of a representation that Mr Steve Zistis would bequeath the property to him under his will, failed: Zistis v Zistis [2018] NSWSC 722. Mr Steve Zistis has since died and it is his estate which now pursues the question of costs.
In issue at trial was whether there was a residential tenancy under the Residential Tenancies Act2010 (NSW) in existence and if there was, whether NCAT had the exclusive jurisdiction to terminate possession of the property. The validity provisions of the Residential Tenancies Act arose in the light of what was decided in Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3.
After s 78B notices were issued, the Attorney-General for New South Wales intervened in the proceedings, but the case advanced on the intervention also failed.
Now in issue is…

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.

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Details

Case: [2019] NSWSC 227
Decision Date: 08 March 2019

CaseChat Overview and Summary

The case of Zistis v Zistis (No 2) involved a dispute between a husband and wife, both of whom were parties to the proceedings. The wife, the respondent, brought an application for an adjournment of a hearing in the Family Court of Australia. The husband, the applicant, did not appear to press the application, leading to its dismissal. The matter then proceeded to address issues related to costs, particularly whether costs should be ordered on an indemnity basis and the impact of intervention by additional parties on the applicant's costs.

The court was required to decide whether the general rule that costs follow the event applied, and if so, how this principle interacted with the concept of indemnity costs. Additionally, the court had to consider the implications of the intervention of additional parties on the costs incurred by the applicant. The legal issues centred on the proper allocation of costs in a multi-party dispute where one party's costs increased due to the intervention of other parties.

The court held that the general rule of costs following the event applies unless there are exceptional circumstances warranting a departure from this principle. The court found that the husband's costs increased significantly due to the intervention of additional parties, and thus, an indemnity costs order was appropriate. The court acknowledged that the wife's intervention was a factor that contributed to the increase in costs for the husband. As a result, the court ordered that the husband's costs be paid on an indemnity basis by the wife. This decision was grounded in the principle that costs should reflect the actual financial burden placed on a party as a result of the proceedings, particularly where the intervention of additional parties has played a role.

Orders