Jack Marzec v Waclaw Marian (Willy) Lysiak (No 2) [2015] NSWSC 1159

Supreme Court New South Wales

Medium Neutral Citation: Jack Marzec v Waclaw Marian (Willy) Lysiak (No 2) [2015] NSWSC 1159 Hearing dates: 14 August 2015 Date of orders: 14 August 2015 Decision date: 14 August 2015 Jurisdiction: Equity Division Before: Kunc J Decision: Defendants to pay 50% of plaintiff's costs Catchwords: COSTS – Plaintiff recovers considerably less than amount sued for and less than $500,000 – Liquidated amounts all within jurisdictional limit of District Court but claim for account possibly exceeded limit – UCPR Pt 42 r 42.34 – District Court Act 1972 (NSW) ss 44(1)(c), 134(1)(h) Legislation Cited: Civil Procedure Act 2005 (NSW) District Court Act 1973 (NSW) UCPR Pt 42 r 42.34 Cases Cited: Birkbeck v Crowley (1925) 42 WN (NSW) 86 Category: Costs Parties: Jack Marzec (Plaintiff) Waclaw Marian (Willy) Lysiak (First Defendant) Julius Waclaw Lysiak (Second Defendant) Representation: Counsel: A.J. Macauley (Plaintiff) P.A. Tiernan (Second Defendant)

Solicitors: Russell C Byrnes (Plaintiff) Counsel: A.J. Macauley (Plaintiff) P.A. Tiernan (Second Defendant)

Solicitors: Russell C Byrnes (Plaintiff) P.A. Tiernan (Second Defendant) File Number(s): 2013/140096 Publication restriction: No

EX TEMPORE JUDGMENT 1. The Court delivered judgment in these proceedings on 28 May 2015: Jack Marzec v Waclaw Marian (Willy) Lysiak (2015) NSWSC 647 (the "principal judgment"). These reasons should be read in conjunction with the principal judgment and defined terms in that judgment have the same meaning in these reasons. As at the earlier hearing, Mr A J Macauley of Counsel appeared today for Jack and Mr P Tiernan, Solicitor, appeared for Julius. There was no appearance for Willy, who had represented himself at the earlier hearing. I am nevertheless satisfied by evidence tendered this morning that Willy was aware of today's hearing. 2. At the conclusion of the principal judgment the Court invited the parties to endeavour to agree on orders that would give effect to the Court's findings. As part of that process the Court hoped that the parties would be able to agree on the outcome of any accounting between them consequent upon the Court's findings as to the existence or non-existence of the partnerships which had been alleged by Jack. 3. At least as between Jack and Julius, some measure of agreement has been reached. Mr Macauley has produced a detailed set of submissions entitled "Judgment Accounting" dating 3 August 2015. Mr Tiernan, on behalf of Julius, takes issues with only three aspects of those submissions: 1. The attribution of receipts totalling $22,781.27 to the Solar Panel Partnership. 2. An allowance in favour of Jack for expenses incurred by him in relation to the Solar Panel Partnership of $8,904.67. 3. Julius submits that either the Court should order Jack to pay Julius' costs of the proceedings or that by reference to UCPR Pt 42 r 42.34 no orders as to costs should be made in the proceedings to the intent that each party bears its own costs.