Kyriacou v Makis (No 2) [2021] NSWSC 802

Kyriacou v Makis (No 2) [2021] NSWSC 802

Although Ms Makis succeeded on the plaintiff's claim, her serial failure to comply with case management orders requiring service of a draft cross-claim was a serious breach of the duty imposed by s 56 of the Civil Procedure Act 2005 (NSW). That failure prevented the Court from resolving all overlapping issues in one hearing, caused likely wastage of costs, and made any immediate costs order or interim lump sum costs order in her favour artificial and speculative. The appropriate order was to reserve the costs to the point of the primary judgment, save for costs orders already made.

Jurisdiction
Australia
Judgment Date
01 July 2021
Procedural Posture
Costs / On the Papers After Primary Judgment Dismissing the Plaintiff's Claim
Outcome
Costs reserved; no costs order or interim lump sum costs order made in favour of the first defendant at this stage.
Legal Topics
['party/party Costs' 'costs Follow the Event' 'case Management Orders' 'cross Claim' 'overriding Purpose' 'failure to Comply With Directions and Orders' 'reserved Costs']
['costs' 'civil Procedure' 'equity'] ['party/party Costs' 'costs Follow the Event' 'case Management Orders' 'cross Claim' 'overriding Purpose' 'failure to Comply With Directions and Orders' 'reserved Costs']

Case Brief

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Procedural Posture

Costs / On the Papers After Primary Judgment Dismissing the Plaintiff's Claim

Legal Issues

  1. 1 ["Whether the first defendant, having succeeded on the plaintiff's claim, should receive an ordinary costs order under UCPR r 42.1." "Whether the first defendant's repeated failure to serve and file a foreshadowed cross-claim in accordance with case management orders justified departing from the usual rule that costs follow the event." 'Whether an interim lump sum costs order should be made in favour of the first defendant.']

Ratio Decidendi

Although Ms Makis succeeded on the plaintiff's claim, her serial failure to comply with case management orders requiring service of a draft cross-claim was a serious breach of the duty imposed by s 56 of the Civil Procedure Act 2005 (NSW). That failure prevented the Court from resolving all overlapping issues in one hearing, caused likely wastage of costs, and made any immediate costs order or interim lump sum costs order in her favour artificial and speculative. The appropriate order was to reserve the costs to the point of the primary judgment, save for costs orders already made.

Court Disposition

Costs reserved; no costs order or interim lump sum costs order made in favour of the first defendant at this stage.

Orders

  • ['Save for any costs orders that have been made to date, the costs of the proceedings to the point of the delivery of judgment handed down on 9 February 2021 are reserved.']