Calokerinos, Executor of the Estate of the late George Sclavos v Aantcorp Pty Ltd

JUDGMENT

1. The Court published its primary judgment in respect of the issues that remained for determination by the Court on 27 February 2023: Calokerinos, Executor of the Estate of the late George Sclavos v Aantcorp Pty Ltd [2023] NSWSC 148 ("J").
2. The Court's orders for costs made in the primary judgment left open a question concerning what I described in order 3 as "the relevant proportion" of the fourth defendant, Gokan Yesilhat's, costs. Relevantly, orders 3 and 4 were as follows: (3) Subject to orders 4 and 5, makes a costs order against the plaintiff in favour of the fourth defendant to pay the relevant portion of his costs of the proceedings as follows: (a) there be no order for costs for the period from the commencement of the proceedings up to 22 May 2019 with the intent that the parties will bear their own costs for that period. (b) the plaintiff shall pay the fourth defendant's costs between 22 May 2019 and 11 August 2020 on the ordinary basis. (c) the plaintiff shall pay the fourth defendant's costs for the period after 11 August 2020 on the indemnity basis. (4) For the purposes of order 3, the relevant portion shall be determined following the provision by the plaintiff and the fourth defendant of submissions as required by par 92 of the reasons for judgment to determine the proportion of the costs incurred jointly by the third, fourth and fifth defendants that should be paid by the plaintiff to the fourth defendant.
3. The reasons for the reference to "the relevant portion" in orders 3 and 4 will be found in J [90]-[92], which I will now repeat for convenience: [90] The formulation of the order for costs that should be made in favour of Gokan Yesilhat against Ms Calokerinos in respect of the cost of the proceedings generally should take into account what I understand to be the case that Okan and Gokan Yesilhat and ABT had common legal representation until the appointment of a liquidator of ABT on 29 October 2020 and the declaration of Okan Yesilhat's bankruptcy on 7 June 2021. For convenience, I will set out again order 3 made by Slattery J in Judgment (No 4) concerning the costs payable by Ms Calokerinos to Gokan Yesilhat in the primary proceedings: "(3) Order that the plaintiff pay Mr Gokan Yesilhat's costs of the debt/trust proceedings, which shall be assessed on the ordinary basis and on the basis that he shall receive (a) the costs attributable to his defence which are 7.5% of the common costs incurred by all the defendants in the proceedings, together with (b) any specific expenses referable solely to his participation in the proceedings, being for example expenses related to the preparation of his affidavits." [91] As Okan Yesilhat plainly was the principal defendant in these proceedings, it would be unjust for the Court to ignore the involvement of Okan Yesilhat and ABT (both of whom were found by Slattery J to be liable to Ms Calokerinos) and to simply make an order that would oblige Ms Calokerinos to pay all of the costs incurred by Gokan Yesilhat when he was jointly liable for the costs with the principal defendants. [92] As the parties have not made submissions concerning the proper wording of the costs order, I will give Ms Calokerinos and Gokan Yesilhat the opportunity to do so. Ms Calokerinos should deliver written submissions to my Associate (limited to three pages) within seven days of the publication of these reasons for judgment and Gokan Yesilhat should respond (also limited to three pages) within a further seven days.