J P Morgan Trust Australia Limited v Siahos (No 2) [2009] NSWSC 1168

New South Wales Supreme Court

CITATION : J P Morgan Trust Australia Limited v Siahos (No 2) [2009] NSWSC 1168

HEARING DATE(S) : 2 October 2009

JUDGMENT DATE : 4 November 2009

JUDGMENT OF : Harrison J

DECISION : The plaintiff pay the defendants' costs of the hearing before me, including the costs of the present argument.

CATCHWORDS : COSTS – successful appeal to the Court of Appeal – costs of hearing at first instance to be determined by trial judge – no matter of principle – plaintiff to pay the defendants' costs

LEGISLATION CITED : Powers of Attorney Act 2003

CATEGORY : Consequential orders

CASES CITED : J P Morgan Trust Australia Limited v Siahos [2008] NSWSC 207 Siahos v J P Morgan Trust Australia Limited [2009] NSWCA 20

J P Morgan Trust Australia Limited (Plaintiff) PARTIES : Peter Siahos (First Defendant) Prokopios Siahos (Second Defendant) Chrisoula Siahos (Third Defendant)

FILE NUMBER(S) : SC 12244/2006

COUNSEL : P T Newton (Plaintiff) J A Jobson (Second and Third Defendants)

SOLICITORS : Kemp Strang (Plaintiff) Andresakis & Associates (Second and Third Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION POSSESSION LIST

HARRISON J

4 November 2009

12244/2006 J P Morgan Trust Australia Limited v Peter Siahos, Prokopios Siahos and Chrisoula Siahos (No 2)

JUDGMENT 1 HIS HONOUR: On 13 March 2008 I decided the principal proceedings: see J P Morgan Trust Australia Limited v Siahos [2008] NSWSC 207. The defendants successfully appealed to the Court of Appeal: see Siahos v J P Morgan Trust Australia Limited [2009] NSWCA 20. At [37] of the Court of Appeal judgment Macfarlan JA said the following: "[37] The appellants are entitled to their costs of the appeal as they succeeded upon the only point which was at issue. It does not appear that the primary judge made an order for costs of the proceedings at first instance. As the issues before his Honour were much broader than they came to be on appeal, there is room for different views about what, if any, orders should be made in respect of costs at first instance following determination of this appeal. His Honour is best placed to form a view about that and the proceedings should be remitted to him to consider and determine any applications for costs that are made to him in respect of the proceedings at first instance." 2 The matter came back before me on 2 October 2009 for argument on costs in the light of the reasoning and decision of the Court of Appeal. This judgment deals with that single issue. The reasons that follow assume familiarity with my earlier decision and the decision of the Court of Appeal. Consideration 3 At the plaintiff's request I made no order for costs of the original trial. This was presumably for the reason that the plaintiff was content to rely upon the terms of its security and its contractual entitlement to include the costs of recovery in the sum secured. 4 The plaintiff argued that its loss in the Court of Appeal followed upon an argument raised in that Court by the defendants that was not raised at the hearing before me. In those circumstances the plaintiff contended in effect that the costs of the proceedings before me were wasted or thrown away to the extent that the issue that succeeded in the Court of Appeal could and should have been raised by the defendants in the first place. 5 The defendants contended that the issue upon which they succeeded in the Court of Appeal was in fact the same argument that was run before me, even if it was to some extent refined by the time it was considered there. In those circumstances the proceedings before me should have resulted in a judgment in favour of the plaintiff limited to the admitted sum of $510,892.43 that the defendants conceded was used to discharge a prior registered mortgage held by a third party secured over their property. The balance of $181,682.82 owing to the plaintiff was the only amount in dispute, which the Court of Appeal held was not secured by the plaintiff's mortgage for reasons associated with its execution pursuant to a power of attorney in breach of s 12 of the Powers of Attorney Act 2003 ("the Act"). The defendants submitted that the same result before me would or should have led to an order that the plaintiff pay their costs. 6 The judgment of Macfarlan JA in the Court of Appeal identified the difference in approach taken by the defendants as appellants in that Court. His Honour's judgment includes the following paragraphs: " The Issues on Appeal