Nick Houvardas v George Zaravinos and Anor [2003] NSWSC 1028

New South Wales Supreme Court

CITATION : Nick Houvardas v George Zaravinos and Anor [2003] NSWSC 1028 HEARING DATE(S) : 5 November 2003 JUDGMENT DATE : 11 November 2003 JURISDICTION: Equity Division JUDGMENT OF : Bergin J DECISION : See par [15].

CATCHWORDS : [COSTS] - No matter of principle LEGISLATION CITED : Conveyancing Act 1919 (NSW) Nick Houvardas (Plaintiff) PARTIES : George Zaravinos (First Defendant) Ourania Zaravinos (Second Defendant) FILE NUMBER(S) : SC 4177/99 COUNSEL : R. McCrudden and F. Stevens (Plaintiff) M.R. Aldridge SC (Second Defendant) Mercuri & Co (Plaintiff) SOLICITORS : Horowitz & Bilinsky (Second Defendant) Ms S Nash on 4 and 5 November 2003 for the Official Trustee in Bankruptcy

- 4 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BERGIN J

11 November 2003

4177/99 NICK HOUVARDAS v GEORGE ZARAVINOS & ANOR JUDGMENT 1 This is an application for costs consequent upon my judgment of 21 October 2003 and orders made on 5 November 2003. The plaintiff seeks an order that the defendants pay the plaintiff's costs of the proceedings on an indemnity basis. It is submitted that the defendants pursued a course of conduct which had no hope of succeeding on the facts and that the second defendant engaged in a dogged resistance to the claims of the plaintiff by continually claiming that this Court lacked jurisdiction because of the matters decided in other jurisdictions. 2 The first defendant took no part in the proceedings as a party but gave evidence in the second defendant's case. The first defendant, as recorded in my judgment of 21 October 2003, is a bankrupt. The Official Trustee took no part in the proceedings until 4 and 5 November 2003 when argument occurred in relation to the entry of final orders. 3 As the pleadings were originally constituted the plaintiff sought damages but did not persist with that claim, contenting himself with the application pursuant to s 37A of the Conveyancing Act 1919 (NSW) in which he was successful. The pleading also referred to allegations that the defendants' divorce was a "sham", a case not seriously propounded at the trial. 4 The second defendant submitted that any order against her should be on a party/party basis up to 16 October 2002, excluding costs incurred in preparation of the defence to the claims of "sham" divorce and damages. It was submitted that the plaintiff should pay the second defendant's costs of those matters and her costs from 16 October 2002. 5 On 16 October 2002 the second defendant made an open offer in the following terms: Without admissions and without prejudice to any of the defences Mrs Zaravinos is running in these proceedings, she is prepared to consent to an order that she repay to Mr Houvardas $53,000 plus interest from the time demand was first made upon her until the time of Mr George Zaravinos' bankruptcy together with costs on a one counsel basis, excluding costs that have been ordered to be paid by the plaintiffs or have been reserved, and subject to that order being stayed for an appropriate time to enable her to sell a property to comply with it. (Ex 10) 6 As recorded in my judgment of 17 October 2002 the plaintiff attempted to accept that offer but at the same time continue his proceedings against the first defendant. I took the view that the offer that was made was not an offer that accommodated such an approach and that it was intended to settle the whole of the proceedings. Accordingly, the trial proceeded. 7 Mr Aldridge SC for the second defendant submitted that the plaintiff in this case was suing as a creditor prejudiced by the alienations and that all that was ultimately sought and achieved in these proceedings was the order pursuant to s 37A whereby the first defendant's interest in the three properties became available against which the plaintiff may prove the District Court judgment debt, interest and costs in the bankruptcy. It was submitted that the offer made by the second defendant, if accepted, would have removed the plaintiff's prejudice caused by the alienations in that he would have been paid the outstanding monies in full.