Arambatzis v Foundas (No 2) [2024] NSWSC 859

Supreme Court New South Wales

Medium Neutral Citation: Arambatzis v Foundas (No 2) [2024] NSWSC 859 Hearing dates: On the papers Date of orders: 15 July 2024 Decision date: 15 July 2024 Jurisdiction: Equity Before: Kunc J Decision: Gross sum costs order made Catchwords: COSTS – Party/party – Specified gross sum – no issue of principle Legislation Cited: Civil Procedure Act 2005 (NSW) s 98(4)(c) Cases Cited: Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 Arambatzis v Foundas [2024] NSWSC 400 Foundas v Arambatzis (No 2) [2023] NSWSC 1329 Hamod v New South Wales [2011] NSWCA 375 Hancock v Rinehart (Lump Sum Costs) [2015] NSWSC 1640 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Latoudis v Casey (1990) 97 ALR 45, 50; [1990] HCA 59 Young & Young v Attorney General of New South Wales (No 2) [2024] NSWSC 705 Category: Costs Parties: Peter Arambatzis (Plaintiff) Cassiani Foundas (Defendant) Representation: Counsel: D Barlin (Plaintiff) C Foundas (Defendant – self-represented) S Chen, Solicitor (Trustees)

Solicitors:

Cutri & Associates (Plaintiff) William Roberts Lawyers (Trustees and Applicants) File Number(s): 2018/184682

JUDGMENT

Summary 1. By a judgment delivered on 15 April 2024, the Court resolved two competing notices of motion concerning a property at Ashcroft of which the plaintiff, Mr Arambatzis and the defendant, his sister Ms Foundas are co-owners and to which Darke J had appointed Trustees for sale pursuant to s 66G Conveyancing Act 1919 (NSW): Arambatzis v Foundas [2024] NSWSC 400. Defined terms in the judgment have the same meaning in these reasons, which assume familiarity, and should be read with, the judgment. 2. In the judgment, pursuant to a motion filed by the Trustees on 19 January 2024, the Court granted leave for a writ to issue for possession of the property. It also dismissed a motion filed by Ms Foundas on 5 April 2024 which sought a stay of any writ pending an appeal which she has filed from a recent decision of Rees J. 3. When the judgment was delivered, the Court ordered the defendant "to pay the other parties' costs of both the trustees' notice of motion filed 19 January 2024 and the defendant's notice of motion filed on 5 April 2024, those costs as agreed or assessed to be payable in the first instance from the defendant's share of the net proceeds of sale of the land referred to in Order 2." 4. Mr D Barlin, Counsel for the plaintiff, requested an opportunity for his client to make an application for a gross sum costs order on the ordinary basis. The Court then made directions for the exchange of submissions and evidence by the parties as to whether a gross sum costs order should be made and that the application would be dealt with on the papers. 5. In accordance with the Court's directions, the plaintiff's submissions were filed together with an affidavit from Mr Frank Cutri, solicitor for the plaintiff dated 29 April 2024 in support of the application. The plaintiff seeks orders that Ms Foundas pay the plaintiff's costs of the motions assessed as a specified gross sum of $11, 766.15 or, in the alternative, such sum as the Court determines. Those costs were to be payable on the ordinary basis in the first instance from the first defendant's share of the net proceeds of sale from the property. 6. Following an extension of time, the Court also received submissions from Ms Foundas in opposition to the plaintiff's application on 7 June 2024. The plaintiff declined to file any submissions in reply to the submissions filed by Ms Foundas. 7. On 14 June 2024, Mr Chen, solicitor for the Trustees, sent an email to my Associate confirming that the Trustees did not intend to make their own application for a gross sum costs order and did not intend to make submissions in relation to Mr Arambatzis' application. 8. For the reasons which follow, the Court will make orders in accordance with Mr Arambatzis' application.