Poulos v Tzavellas [2016] NSWSC 1303

Poulos v Tzavellas [2016] NSWSC 1303

Contractual enforcement costs are payable by the defendants from 8 May 2015, the date the whole debt was repaid by the Poulos parties, as this is when subrogation accrued. Indemnity costs are not justified for the earlier period due to lack of persuasive evidence of relevant delinquency. The proportion issue among guarantors remains to be determined.

Parties
First Plaintiff/first Cross Defendant: Frank Fotis Poulos; Second Plaintiff/second Cross Defendant: Joy Poulos; Third Plaintiff/third Cross Defendant: F Poulos Enterprises Pty Ltd; First Defendant/first Cross Claimant: Spiros Tzavellas; Second Defendant/second Cross Claimant: Carlie Tzavellas
Jurisdiction
Australia
Judgment Date
12 September 2016
Procedural Posture
Possession List Proceedings / Interlocutory Ruling Regarding Quantum Calculation and Costs
Outcome
Matter stood over for further determination of proportion issue and remaining issues; parties directed to calculate quantum of judgment.
Legal Topics
Guarantors' Liability for Enforcement Costs, Subrogation, Calculation of Costs Under Loan Facility
Guarantees and Indemnities Civil Procedure Guarantors' Liability for Enforcement Costs Subrogation Calculation of Costs Under Loan Facility

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Parties

Frank Fotis Poulos

First Plaintiff/first Cross Defendant

Joy Poulos

Second Plaintiff/second Cross Defendant

F Poulos Enterprises Pty Ltd

Third Plaintiff/third Cross Defendant

Spiros Tzavellas

First Defendant/first Cross Claimant

Carlie Tzavellas

Second Defendant/second Cross Claimant

Procedural Posture

Possession List Proceedings / Interlocutory Ruling Regarding Quantum Calculation and Costs

Legal Issues

  1. 1 From which date should enforcement costs under the contract be payable by remaining guarantors?
  2. 2 Whether indemnity costs should be ordered for undue prolongation of proceedings
  3. 3 Proper approach to calculation of liability and proportion of enforcement costs among guarantors

Ratio Decidendi

Contractual enforcement costs are payable by the defendants from 8 May 2015, the date the whole debt was repaid by the Poulos parties, as this is when subrogation accrued. Indemnity costs are not justified for the earlier period due to lack of persuasive evidence of relevant delinquency. The proportion issue among guarantors remains to be determined.

Court Disposition

Matter stood over for further determination of proportion issue and remaining issues; parties directed to calculate quantum of judgment.

Orders

  • Defendants to pay plaintiffs' costs as assessed on the ordinary basis up to and including 8 May 2015.
  • Defendants to pay plaintiffs' costs from 8 May 2015 in accordance with the contract.