Spathis v Nanos (No 2) [2008] NSWSC 470

New South Wales Supreme Court

CITATION : Spathis v Nanos (No 2) [2008] NSWSC 470

HEARING DATE(S) : 13 May 2008 JURISDICTION : Equity

JUDGMENT OF : Jagot AJ

EX TEMPORE JUDGMENT DATE : 13 May 2008

CATCHWORDS : COSTS - s 66G application - whether circumstances displaced usual approach to costs of both parties out of proceeds of sale - plaintiff sought order that defendant pay plaintiff's costs on indemnity or party-party basis - order made for plaintiff's costs only to be paid out of the proceeds of sale

LEGISLATION CITED : Conveyancing Act 1919

Kardos v Sarbutt (No 2) [2006] NSWCA 2006 CASES CITED : Mckay v Mckay (Costs) [2008] NSWSC 256 Vollmer v Hauber Davidson (2007) DFC 95-400

PLAINTIFF Gerasimos Spathis PARTIES : DEFENDANT Amalia Nanos

FILE NUMBER(S) : SC 4498 of 2007

COUNSEL : Mr I E Davidson - plaintiff Mr S W Climpson - defendant

SOLICITORS : JSM Lawyers - plaintiff James Lawyers - defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Jagot AJ

13 May 2008

4498 of 2007 GERASIMOS SPATHIS v AMALIA NANOS JUDGMENT 1 HER HONOUR: This is an issue of costs arising from the making of orders under s 66G of the Conveyancing Act 1919. In the summons as originally filed by the plaintiff, the plaintiff sought an order that the plaintiff's, but explicitly not the defendant's costs, be paid out of the proceeds of sale.

2 There is no disagreement between the parties with respect to principle. They have taken me to the decision of Kardos v Sarbutt (No 2) [2006] NSWCA 206, in particular, [28] to [31]. In [28] the Court observed that in proceedings under the Conveyancing Act, s 66G, costs were usually paid out of the proceeds of sale, the rationale being that the costs of such an application are incidental to ownership. And in [31] the Court observed that the substantial success of proceedings was "not to be judged merely by the circumstance that a plaintiff obtains an adjustment in his or her favour. It involves an evaluation of the outcome, in the light of the forensic and negotiating positions of the parties, such that it can be said that one party has been clearly more successful than the other…".