Calokerinos, Executor of the Estate of the late George Sclavos v Aantcorp Pty Ltd [2023] NSWSC 148

Supreme Court New South Wales

Medium Neutral Citation: Calokerinos, Executor of the Estate of the late George Sclavos v Aantcorp Pty Ltd [2023] NSWSC 148 Hearing dates: 23 February 2022 Date of orders: 27 February 2023 Decision date: 27 February 2023 Jurisdiction: Equity Before: Robb J Decision: The Court: (1) Notes that all costs orders previously made by the Court remain in effect. (2) Orders the plaintiff to pay the first and second defendants' costs of the proceedings on the indemnity basis from 10 May 2018, with their being no order as to costs between those parties before that date with the intent that they will bear their own costs for that period. (3) Subject to orders 4 and 5, makes a costs order against the plaintiff in favour of the fourth defendant to pay the relevant portion of his costs of the proceedings as follows: (a) there be no order for costs for the period from the commencement of the proceedings up to 22 May 2019 with the intent that the parties will bear their own costs for that period. (b) the plaintiff shall pay the fourth defendant's costs between 22 May 2019 and 11 August 2020 on the ordinary basis. (c) the plaintiff shall pay the fourth defendant's costs for the period after 11 August 2020 on the indemnity basis. (4) For the purposes of order 3, the relevant portion shall be determined following the provision by the plaintiff and the fourth defendant of submissions as required by par 92 of the reasons for judgment to determine the proportion of the costs incurred jointly by the third, fourth and fifth defendants that should be paid by the plaintiff to the fourth defendant. (5) Orders the plaintiff to pay the fourth defendant's costs of the notice of motion filed on 5 August 2021, as amended, claiming an alleged contempt of court by the fourth defendant on the ordinary basis. (6) Orders that any freezing order made by the Court against any party in these proceedings that remains in effect be vacated. Catchwords: CONTEMPT — civil contempt — breach of orders — where plaintiff alleged breach of freezing orders due to winding up of defendant company — where notice of motion dismissed CONVEYANCING — where plaintiff alleged fraudulent conveyance with intention to defraud creditors — where plaintiff sought declaration share transfer void pursuant to s 37A of the Conveyancing Act 1919 (NSW) COSTS — party/party — exceptions to general rule that costs follow the event — where plaintiff was initially justified in bringing claim — where costs order subsequently made in favour of defendant in related proceedings — where defendant company was deregistered — where plaintiff continuing these proceedings following judgment in related proceedings was unreasonable Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(1)(a) Conveyancing Act 1919 (NSW), s 37A Supreme Court Rules 1970 (NSW), r 55.6 Uniform Civil Procedure Rules 2005 (NSW) rr 13.4(1), 14.28(1), 25.11, 40.6(2)(c)(i), 42.1 Cases Cited: Bruce v Magee (t/a Armstrong Legal) [2017] NSWSC 1687 Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos [2017] NSWSC 666 Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos (No. 2) [2019] NSWSC 584 Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos (No. 3) [2019] NSWSC 1752 Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos (No. 4) [2020] NSWSC 1044 Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos (No. 5) [2021] NSWSC 1586 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Stateland Developments Pty Ltd v Princi [2007] NSWSC 709 Yesilhat v Calokerinos [2021] NSWCA 110 Category: Costs Parties: Cleopatra Sclavos Calokerinos, Executor of the estate of the late George Sclavos (plaintiff) Aantcorp Pty Ltd ACN 163 257 869 (first defendant) Nam Thanh Nguyen (second defendant) Okan Yesilhat (third defendant) Gokan Yesilhat (fourth defendant) Australia's Best Tyre & Auto Pty Ltd ACN 151 629 131 (fifth defendant) Representation: Counsel: M Evans (plaintiff) A Kaylinger (first and second defendant) D Allen (fourth defendant)