Supreme Court New South Wales Medium Neutral Citation: Fatseas v Fatseas bht Basha (No 3) [2022] NSWSC 566 Hearing dates: On the papers; submissions received 29 April 2022 and 2 May 2022 Date of orders: 10 May 2022 Decision date: 10 May 2022 Jurisdiction: Equity - Probate List Before: Stevenson J Decision: Order the plaintiff pay the first defendant's costs of the first defendant's Amended Notice of Motion filed 6 April 2022. No order as to the costs of the plaintiff's Notice of Motion filed 12 April 2022 to the intent that each party will pay their own costs of that motion. Catchwords: COSTS – costs of competing Notice of Motions concerning Heads of Agreement Cases Cited: Fatseas v Fatseas bht Basha [2022] NSWSC 402 Fatseas v Fatseas bht Basha (No 2) [2022] NSWSC 487 Category: Costs Parties: Stella Maria Fatseas (Plaintiff/First Respondent) John Emanuel Fatseas bht Gerard John Basha (First Defendant/Applicant) Maria Katina Fatseas (Second Defendant/Second Respondent) Representation: Counsel: M R Pesman SC with C E Alexander (Plaintiff/First Respondent) P Wallis (First Defendant/Applicant) Solicitors: Bay Legal (Plaintiff/First Respondent) Pryor Tzannes & Wallis (First Defendant/Applicant) File Number(s): 2017/85791 Judgment 1. I have given judgments in this matter on 6 April 2022 [1] ("the First Judgment") and on 26 April 2022 [2] ("the Second Judgment"). 2. I shall use the same abbreviations in these reasons. 3. At [25] of the Second Judgment, I invited submissions in relation to the costs of John's Amended Notice of Motion filed 6 April 2022 and Stella's Notice of Motion filed 12 April 2022. 4. I have now received submissions in relation to those matters. John's Amended Notice of Motion filed 6 April 2022 1. As I set out in the First Judgment, [3] by his Amended Notice of Motion of 6 April 2022, John sought a declaration that the Heads of Agreement constituted a binding contract. He also sought orders that the terms of the Heads of Agreement be specifically enforced. 2. When the motion came on for hearing before me on 6 April 2022, Mr Pesman SC, who appeared with Mr Alexander for Stella, said that Stella accepted that the Heads of Agreement did constitute a binding agreement. In submissions on this motion, Mr Wallis, who appeared for John, stated that this concession was made for the first time on that occasion. Mr Pesman and Mr Alexander did not dispute that proposition in their reply submissions. 3. During argument, it emerged that the real issue was the proper construction of the Heads of Agreement. John amended his motion to raise that question as an issue. I determined the issue in John's favour in the First Judgment. 4. In those circumstances, the appropriate order is that Stella pay John's costs of his Amended Notice of Motion of 6 April 2022. Stella's Notice of Motion filed 12 April 2022 1. In the light of my conclusions in the First Judgment as to the proper construction of the Heads of Agreement, a number of issues arose in relation to John's and Maria's alleged obligations under the Heads of Agreement. 2. Mr Pesman and Mr Alexander accepted, in their submissions on this application, that: "Stella advanced three points on her motion. One point has been decided in her favour; one point against her; and one point is yet to be determined." 1. That is a fair summary of the conclusions to which I have reached in the Second Judgment. 2. In those circumstances, Mr Pesman and Mr Alexander continued: "In all the circumstances though, Stella is better off having filed her motion and has had at least partial success. Costs should follow that event." 1. I do not agree. 2. I think Mr Wallis is correct to submit that each party has had a measure of success in relation to Stella's Notice of Motion and that the appropriate order is that there be no order as to the costs of that motion. Further matter 1. Mr Pesman and Mr Alexander also submitted that: "Both parties have previously accepted that the Court should make orders for the statutory trustees to disburse the sale proceeds of the Pagewood Property to the plaintiff … It would appear that this order has not been made. It should be made now." Conclusion and orders 1. I order that the plaintiff pay the first defendant's costs of the first defendant's Amended Notice of Motion filed 6 April 2022. 2. I make no order as to the costs of the plaintiff's Notice of Motion filed 12 April 2022 to the intent that each party will pay their own costs of that motion. 3. If the suggested order concerning the statutory trustees is agreed, the parties should confer and agree on the appropriate form of the order and send it to my Associate. ********** Endnotes 1. Fatseas v Fatseas bht Basha [2022] NSWSC 402. 2. Fatseas v Fatseas bht Basha (No 2) [2022] NSWSC 487. 3. At [1]. Amendments 11 May 2022 - Frist Defendant's Amended Notice of Motion filing date corrected to 6 April 2022. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2022