Nick Houvardas v George Zaravinos and Anor [2003] NSWSC 1028

Nick Houvardas v George Zaravinos and Anor [2003] NSWSC 1028

The plaintiff did not act unreasonably in continuing the proceedings after the second defendant's open offer because the offer was not payment in full of the amounts claimed as creditor. The second defendant knowingly advanced false claims about her lack of knowledge of the first defendant's intention, and defences of Res Judicata/Anshun and Inconsistent Orders were intrinsically linked to those false claims, justifying indemnity costs for those matters. The Bankruptcy Act defence was different, important, and required determination after s 78B Notices, so costs for that defence were recoverable only on a party/party basis. Because the plaintiff virtually abandoned the sham divorce and...

Jurisdiction
Australia
Judgment Date
11 November 2003
Procedural Posture
Costs Application / Application for Costs Consequent Upon Judgment of 21 October 2003 and Orders Made on 5 November 2003
Outcome
Costs orders made in favour of the plaintiff against the second defendant with specified exceptions; plaintiff ordered to pay the second defendant's costs of meeting the sham divorce and damages claims; costs order against the first defendant made subject to leave being obtained.
Legal Topics
['indemnity Costs' 'party/party Costs' 'conveyancing Act S 37 a Claim' 'open Offer of Settlement' 'bankruptcy Act Defence' 'res Judicata/anshun' 'inconsistent Orders']
['costs' 'equity' 'bankruptcy'] ['indemnity Costs' 'party/party Costs' 'conveyancing Act S 37 a Claim' 'open Offer of Settlement' 'bankruptcy Act Defence' 'res Judicata/anshun' 'inconsistent Orders']

Case Brief

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Procedural Posture

Costs Application / Application for Costs Consequent Upon Judgment of 21 October 2003 and Orders Made on 5 November 2003

Legal Issues

  1. 1 ["Whether the defendants should pay the plaintiff's costs on an indemnity basis." "Whether the plaintiff acted unreasonably in not accepting the second defendant's open offer of 16 October 2002." 'Whether costs relating to the abandoned claims of sham divorce and damages should be excluded or paid by the plaintiff.' "Whether the plaintiff's costs of meeting the Bankruptcy Act defence should be paid on an indemnity basis or a party/party basis." 'Whether costs could be ordered against the bankrupt first defendant in light of the leave granted by Gyles J on 28 August 2001.']

Ratio Decidendi

The plaintiff did not act unreasonably in continuing the proceedings after the second defendant's open offer because the offer was not payment in full of the amounts claimed as creditor. The second defendant knowingly advanced false claims about her lack of knowledge of the first defendant's intention, and defences of Res Judicata/Anshun and Inconsistent Orders were intrinsically linked to those false claims, justifying indemnity costs for those matters. The Bankruptcy Act defence was different, important, and required determination after s 78B Notices, so costs for that defence were recoverable only on a party/party basis. Because the plaintiff virtually abandoned the sham divorce and...

Court Disposition

Costs orders made in favour of the plaintiff against the second defendant with specified exceptions; plaintiff ordered to pay the second defendant's costs of meeting the sham divorce and damages claims; costs order against the first defendant made subject to leave being obtained.

Orders

  • ["The second defendant is to pay the plaintiff's costs of the proceedings on an indemnity basis except for the plaintiff's costs of preparation of the claims of sham divorce and damages and the plaintiff's costs of meeting the Bankruptcy Act defence." "The second defendant is to pay the plaintiff's costs of meeting...