Konstandopoulos v Giammaria [2004] NSWSC 1010

Konstandopoulos v Giammaria [2004] NSWSC 1010

The costs payable under the Compensation Court orders were not the property of Keddies; at most Keddies had an equitable charge over the assessed costs. Because the mutual debt was between the plaintiffs and Mr Giammaria, and because the Act prohibits set-off against compensation but not against costs, fairness favoured allowing the plaintiffs to set off their Kogarah Local Court judgment against any judgment for assessed Compensation Court costs. That right of set-off prevailed over Keddies' equitable claim.

Jurisdiction
Australia
Judgment Date
12 November 2004
Procedural Posture
Application for Declaration as to Entitlement to Set Off Costs / Judgment in the Equity Division of the Supreme Court of New South Wales
Outcome
Declarations made that the plaintiffs are entitled to set off the Kogarah Local Court judgment against any judgment for assessed Compensation Court costs, and that this right prevails over any equitable claim of the second defendants.
Legal Topics
['ownership of Costs in Compensation Court Proceedings' "solicitors' Equitable Charge Over Judgment for Costs" 'set Off Against Costs Order' 'workplace Injury Management and Workers Compensation Act 1998 Ss 105(1), 112(2)(b) and 116']
['practice and Procedure' 'costs' 'statutory Interpretation' 'workers Compensation'] ['ownership of Costs in Compensation Court Proceedings' "solicitors' Equitable Charge Over Judgment for Costs" 'set Off Against Costs Order' 'workplace Injury Management and Workers Compensation Act 1998 Ss 105(1), 112(2)(b) and 116']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Declaration as to Entitlement to Set Off Costs / Judgment in the Equity Division of the Supreme Court of New South Wales

Legal Issues

  1. 1 ['To whom the costs in the Compensation Court proceedings belong: Mr Giammaria or Keddies.' 'Whether the judgment obtained by the plaintiffs in Kogarah Local Court can be set off against costs payable pursuant to assessment of the Compensation Court proceedings.' 'Whether the matter should be left to the Workers Compensation Commission.']

Ratio Decidendi

The costs payable under the Compensation Court orders were not the property of Keddies; at most Keddies had an equitable charge over the assessed costs. Because the mutual debt was between the plaintiffs and Mr Giammaria, and because the Act prohibits set-off against compensation but not against costs, fairness favoured allowing the plaintiffs to set off their Kogarah Local Court judgment against any judgment for assessed Compensation Court costs. That right of set-off prevailed over Keddies' equitable claim.

Court Disposition

Declarations made that the plaintiffs are entitled to set off the Kogarah Local Court judgment against any judgment for assessed Compensation Court costs, and that this right prevails over any equitable claim of the second defendants.

Orders

  • ['Declare that the plaintiffs are entitled to set off against any judgment in favour of the first defendant for the amount of costs to be assessed pursuant to orders of the Compensation Court 52557 of 2001, the amount of the judgment entered in the Local Court at Kogarah 383 of 2003 pursuant to order of the Consumer...