Stafford & anor v Kekatos & anor (No 4) [2008] NSWSC 1338

New South Wales Supreme Court

CITATION : Stafford & anor v Kekatos & anor (No 4) [2008] NSWSC 1338

HEARING DATE(S) : 13 November 2008 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 13 November 2008

DECISION : First defendant may reopen to apply for reimbursement in respect of any amount in excess of $185,000 she is obliged to pay pursuant to Terms of Settlement in other proceedings. First defendant's Notice of Motion for leave to reopen otherwise dismissed. First defendant holds her property charged with immediate payment of judgment sum and interest pronounced in substantive proceeding. First defendant to pay plaintiff's costs of proceedings on party-party basis up to and including 23 June 2008, and on indemnity basis thereafter. No order as to costs as between plaintiffs and second defendant.

CATCHWORDS : PROCEDURE – judgments and orders - amending, varying and setting aside – where judgment already given but not entered – general principles on applications to reopen case to adjust judgment sum in light of issue previously overlooked – whether defendant trustee can claim interest on funds advanced to trust – whether defendant should be permitted to claim reimbursement of costs incurred in other proceedings – EQUITY – general principles – remedies – tracing – where property to which plaintiffs held entitled in equity is traceable into defendant's property – whether defendant holds property subject to a charge – whether Court should declare charge – TRUSTS – (NSW) Trustee Act 1925, s 93 – whether proceeding "with respect to the management or administration of any property subject to a trust" – PROCEDURE – costs – indemnity costs – whether first defendant's conduct of case amounted to abuse of process – where offer of compromise made by plaintiffs – whether offer could only be relevant if accepted by both defendants – PROCEDURE – costs – general rule – costs follow the event – whether second defendant should pay or receive costs where no judgment given against him – where second defendant nonetheless failed on many issues raised by him and was cause of litigation