Poulos v Eberstaller (No 2) [2014] NSWSC 235

Poulos v Eberstaller (No 2) [2014] NSWSC 235

Although the proceedings may arguably have satisfied the definition of a matrimonial cause, they were properly instituted and heard in the Supreme Court as Equity proceedings arising from the purported sale and transfer of the Bellevue Hill property. The Court's costs discretion under section 98 of the Civil Procedure Act 2005 (NSW) applied, and even if section 117 of the Family Law Act 1975 (Cth) were relevant the same costs result would follow. The costs consultant's unchallenged report used an orthodox approach for proceedings in this Court and justified the claimed amount, including the use of two counsel. The first defendant's objections did not warrant any reduction.

Jurisdiction
Australia
Judgment Date
17 March 2014
Procedural Posture
Costs / Application for Gross Fixed Sum Costs Order Following Judgment
Outcome
Judgment for the plaintiff against each of the first and second defendants in the sum of $148,278.78.
Legal Topics
['gross Fixed Sum Costs Order' 'costs Assessment' 'matrimonial Cause Argument' 'jurisdiction of the Supreme Court of New South Wales' 'family Law Rules Costs Scale']
['costs' 'civil Procedure' 'equity'] ['gross Fixed Sum Costs Order' 'costs Assessment' 'matrimonial Cause Argument' 'jurisdiction of the Supreme Court of New South Wales' 'family Law Rules Costs Scale']

Case Brief

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Procedural Posture

Costs / Application for Gross Fixed Sum Costs Order Following Judgment

Legal Issues

  1. 1 ['Whether the plaintiff should receive a gross fixed sum costs order and in what amount.' 'Whether the proceedings should be treated as a matrimonial cause governed by the Family Law Act 1975 (Cth) and Family Law Rules 2004 (Cth) for costs purposes.' "Whether the plaintiff's recoverable costs should be reduced by applying Family Court scale rates or because of alleged wastage, duplication, or use of two counsel."]

Ratio Decidendi

Although the proceedings may arguably have satisfied the definition of a matrimonial cause, they were properly instituted and heard in the Supreme Court as Equity proceedings arising from the purported sale and transfer of the Bellevue Hill property. The Court's costs discretion under section 98 of the Civil Procedure Act 2005 (NSW) applied, and even if section 117 of the Family Law Act 1975 (Cth) were relevant the same costs result would follow. The costs consultant's unchallenged report used an orthodox approach for proceedings in this Court and justified the claimed amount, including the use of two counsel. The first defendant's objections did not warrant any reduction.

Court Disposition

Judgment for the plaintiff against each of the first and second defendants in the sum of $148,278.78.

Orders

  • ['Judgment to the plaintiff against each of the first and second defendants in the sum of $148,278.78.']