Photios v Photios (No 2) [2019] NSWCA 209

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Photios v Photios (No 2) [2019] NSWCA 209 Hearing dates: On the papers Date of orders: 26 August 2019 Decision date: 26 August 2019 Before: Bell P at [1]; Gleeson JA at [34]; Leeming JA at [35] Decision: 1. Vary order 2 of the orders made on 27 June 2019 by adding as a further condition on the grant of leave to amend the amended statement of cross-claim the condition that the Appellant pay the mediator's costs of any further mediation including the costs of hire of any mediation rooms.

2. Order that the Respondent pay the Appellant's costs of the application for leave to amend before the primary judge and the costs of the application for leave to appeal up until 12 March 2019 on a party-party basis.

3. Order that the Respondent be entitled to an indemnity from the Estate of Henry Basil Photios for the costs referred to in Order 2 and for her own costs in relation to the application for leave to amend before the primary judge and of the costs in this Court. Catchwords: COSTS – application for payment of costs on indemnity basis from date of an offer – relevant principles considered Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 59 Cases Cited: Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Zilotto v Hakim [2013] NSWCA 359 Category: Costs Parties: David Peter Photios (Appellant) Lana Clarice Photios (in her capacity as Executor of the Estate of Henry Basil Photios) (Respondent) Representation: Counsel: M Sneddon (Appellant) JA Trebeck (Respondent)