Riabkoff v Abenergy Properties Pty Ltd [2012] NSWSC 724

Riabkoff v Abenergy Properties Pty Ltd [2012] NSWSC 724

Both Mr Riabkoff and Abenergy Properties Pty Ltd placed Mr Chong in the position where he incurred legal costs as stakeholder faced with rival claims to the $100,000, so both were ordered to pay his costs on an indemnity basis. Mr Riabkoff was required to indemnify Abenergy for those costs because he had agreed in the deed to pay Mr Chong's fees and his failure to respond to Mr Chong's correspondence substantially led to the interpleader application. A gross sum order was refused because assessment was unlikely to be protracted or expensive, there was no evidence that the paying parties could not meet assessment costs, and the Court lacked sufficient evidence to assess the reasonableness...

Jurisdiction
Australia
Judgment Date
29 June 2012
Procedural Posture
Interpleader Costs Application / Costs of the Second Defendant's Notice of Motion Filed 11 May 2012 After Consent Interpleader Order Made by the Registrar on 23 May 2012
Outcome
The second defendant was awarded indemnity costs payable by the plaintiff and first defendant, with the plaintiff to indemnify the first defendant; a gross sum costs order was refused; the second defendant was declared entitled to deduct assessed or agreed costs from the stakeholder funds and pay the balance into...
Legal Topics
['interpleader' 'indemnity Costs' 'gross Sum Costs Order' 'stakeholder Funds' 'solicitor Trust Account' 'trustee Right of Indemnity']
['civil Procedure' 'costs' 'trusts' 'legal Profession'] ['interpleader' 'indemnity Costs' 'gross Sum Costs Order' 'stakeholder Funds' 'solicitor Trust Account' 'trustee Right of Indemnity']

Case Brief

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Procedural Posture

Interpleader Costs Application / Costs of the Second Defendant's Notice of Motion Filed 11 May 2012 After Consent Interpleader Order Made by the Registrar on 23 May 2012

Legal Issues

  1. 1 ["Whether the plaintiff alone or both the plaintiff and the first defendant should pay the second defendant's costs of the interpleader application." "Whether the Court should make a gross sum costs order fixing the second defendant's costs at $18,842 under s 98(4)(c) of the Civil Procedure Act 2005." 'Whether the second defendant was entitled to deduct his costs from the $100,000 held by him in his trust account as stakeholder.' "Whether the second defendant's costs should be payable on an indemnity basis."]

Ratio Decidendi

Both Mr Riabkoff and Abenergy Properties Pty Ltd placed Mr Chong in the position where he incurred legal costs as stakeholder faced with rival claims to the $100,000, so both were ordered to pay his costs on an indemnity basis. Mr Riabkoff was required to indemnify Abenergy for those costs because he had agreed in the deed to pay Mr Chong's fees and his failure to respond to Mr Chong's correspondence substantially led to the interpleader application. A gross sum order was refused because assessment was unlikely to be protracted or expensive, there was no evidence that the paying parties could not meet assessment costs, and the Court lacked sufficient evidence to assess the reasonableness...

Court Disposition

The second defendant was awarded indemnity costs payable by the plaintiff and first defendant, with the plaintiff to indemnify the first defendant; a gross sum costs order was refused; the second defendant was declared entitled to deduct assessed or agreed costs from the stakeholder funds and pay the balance into...

Orders

  • ["The plaintiff and the first defendant pay the costs of the second defendant of the second defendant's Notice of Motion of 11 May 2012 and of the proceedings on an indemnity basis." 'The plaintiff pay the costs of the first defendant that the first defendant is liable to pay by reason of order 1.' 'Declare that the...