Kyrikos v Kyrikos

Category: Costs

Parties: Nicolette Kyrikos (Plaintiff)
Alexander Kyrikos (Defendant)

Representation: Counsel:
J O’Connor (Plaintiff)
S Jeliba (Defendant)
Solicitors:
Pelosi and Associates (Plaintiff)
Mills Oakley (Defendant)

File Number(s): 2025/00351445

Publication restriction: Nil

JUDGMENT

1. The plaintiff is the defendant’s elderly mother.

2. Together they are the registered proprietors as co-owners of a property situated at Glenmore Road, Paddington (Property). The ownership proportions are 82.5% (plaintiff) and 17.5% (defendant) as tenants in common.

3. By summons filed 12 September 2025, the plaintiff seeks orders for the appointment of trustees for sale of the Property pursuant to s 66G of the Conveyancing Act 1919 (NSW).

4. On 5 December 2025, I made orders by consent for trustees to be appointed to sell the Property. Those orders were ultimately agreed between the parties after a period of negotiation.

5. Those orders do not include orders as to the costs of the proceedings, the parties being unable to agree those orders.

6. These reasons determine the question of costs. I have had the benefit of written submissions from both parties including submissions in reply from the plaintiff.

7. The plaintiff seeks an order that the plaintiff’s costs be paid from the proceeds of sale and the defendant is to bear his own costs of the proceedings.

8. The defendant contends that each party ought to bear their own costs of the proceedings.

9. As is often the case, the respective contentions involve an analysis of the conduct of the parties both before the proceedings were commenced, and during the proceedings. I set out the chronology below.

10. It is important to recognise that the Court is not conducting a contested hearing of the facts underlying the costs dispute, particularly the underlying truth of allegations made in correspondence. This would be wholly disproportionate.

11. On 15 May 2025, the plaintiff’s solicitor wrote to the defendant offering for the defendant to acquire the plaintiff’s share, or for the Property to be sold.

12. The defendant’s immediate response was for the plaintiff’s solicitor to advise the plaintiff to seek independent advice without the presence of his sister/her daughter, and that before Court intervention, he and his mother should seek formal or informal mediation to “reconcile our differences”.

13. On 28 May 2025, the plaintiff’s solicitor responded that the plaintiff had made it abundantly clear that her decision to sell the Property is hers and hers alone. She requires the sale of the Property “but her preference remains to do so amicably and co-operatively”.

14. The correspondence continued with the defendant contending that the plaintiff was being unduly influenced by his sister/her daughter.

15. On 25 June 2025, the plaintiff’s solicitor sent a further email to the defendant stating that he understood that there had been discussions directly between the plaintiff and the defendant regarding the sale of the Property and that the outcome of those discussions was that the plaintiff’s position had not changed – she requires the sale of the Property. The defendant was put on notice that unless the plaintiff’s solicitor received confirmation that the defendant would engage in the process to sell the Property, they were instructed to commence proceedings without further notice to the defendant, for the appointment of a trustee by the Court to sell the Property.

16. The defendant immediately responded to state that while he sought to speak with his mother, she did not wish to engage in discussions, so he left. He then reiterated that the best course of action was for his mother to be properly informed and that this can only occur if they were able to meet to discuss the matter, and his mother receives independent advice based on all relevant facts. The defendant inquired as to whether the solicitors were able to facilitate a meeting.

17. Two further emails were sent by the defendant to the plaintiff’s solicitors on 25 June 2025. The first contained a list of matters to be discussed, which included the best timing of a sale. The second email was the first email, translated into Greek to facilitate correspondence with his mother.

18. The proceedings were then commenced on 12 September 2025.

19. In early October 2025, the defendant and the plaintiff’s solicitors then exchanged further correspondence. It appears that the defendant visited the plaintiff to seek to explain his position. The plaintiff apparently made it clear to the defendant that she wished to discuss the matter with her lawyer and, having done so, her position has not changed. The emails also contain allegations of aggressive behaviour by the defendant towards the plaintiff which the defendant denied. I am, of course, in no position to determine the truth or otherwise of these contentions.

20. In his email of 2 October 2025, the defendant indicated to the plaintiff’s solicitors that he was prepared to settle the matter and proceed with the sale of the Property in accordance with Option 2 set out in the letter of 15 May 2025 provided that his mother grants no enduring power of attorney to the defendant’s sisters or to the defendant, and she revokes any existing powers of attorney. Alternatively, the defendant indicated that the plaintiff may grant an enduring power of attorney operative in the event of her incapacity provided that any such appointment also includes the defendant or at least one of her adult grandchildren as a joint attorney with one or more of his sisters.

21. On 9 October 2025, the defendant’s solicitor proposed orders to the plaintiff’s solicitor. The effect of those orders was to provide for the parties to work together to sell the Property by way of auction without the necessity and expense of a trustee for the sale.

22. On 13 October 2025, the solicitors for the plaintiff responded to the effect that they did not agree with the defendant’s proposed orders and were instructed to seek orders for the appointment of trustees for sale. Draft orders were attached.

23. On 16 October 2025, the solicitors for the defendant emailed the solicitors for the plaintiff, proposing short minutes of order to be made on 17 October 2025. The short minutes noted that the defendant opposes the appointment of trustees and seeks to conduct a mediation with the plaintiff to seek to resolve the proceedings by 14 November 2025. The proposed orders were to the effect that the proceedings be listed for further directions on or after 21 November 2025 and that in the event that the proceedings did not settle at any mediation, the defendant serve evidence in answer to the evidence of the plaintiff by 20 November 2025.

24. In the alternative to this last order, the proposed orders also repeated the earlier proposed orders to the effect that the parties work together to sell the Property by auction without the need for trustees.

25. The plaintiff’s solicitor responded later that day contending that the defendant did not agree to cooperate in a sale and had instead adopted a course of intimidation and harassment of the plaintiff. It was alleged that the plaintiff was anxious and stressed by the defendant’s conduct and is fearful of him. It was then contended that in these circumstances it would be entirely unreasonable to expect the plaintiff to attend mediation and that the appointment of trustees is clearly necessary. I repeat that I am in no position to make any findings on whether the defendant had intimidated and harassed the plaintiff.

26. When the proceedings were first before the Court on 17 October 2025, I made orders for the defendant to file and serve any evidence by 20 November 2025 and for the matter to be re-listed for directions on 28 November 2025.

27. Counsel for the defendant who appeared on that occasion made it clear that the defendant “opposed the appointment of the trustees as proposed in the summons” but made it clear that she did not understand that her instructions to be that the sale is opposed, and that there may be a different pathway to sale. This is consistent with the draft orders propounded by the defendant to the plaintiff on 16 October 2025.

28. On 27 November 2025, the solicitors for the defendant proposed orders to the plaintiff’s solicitor, including that a single trustee (not two trustees) be appointed to sell the Property. The proposed orders contained certain orders as to how and when the Property was to be sold. The draft orders also proposed that the plaintiff pay the defendant’s costs of and incidental to the proceedings on the ordinary basis. An affidavit also filed by the defendant dated 20 November 2025 made it clear that the defendant did not oppose the sale of the Property but suggested that only one trustee be appointed in order to conserve costs. His position was also that the trustee should engage professionals that are already familiar with the Property, the Property is to be sold on a date not before 28 January 2026 and that the costs of the trustee be paid by him and his mother, proportionate to their respective interests in the Property.

29. When the matter was next before the Court on 28 November 2025, counsel for the plaintiff asked for the matter to be stood over for one week because the defendant’s counsel was not available on 28 November 2025. This was for the purpose of having brief argument about the form of orders to sell the Property. I ordered the defendant to serve on the plaintiff and provide to my Associate by 4pm on 3 December 2025, submissions of no more than five pages as to final relief, and for submissions in reply to be filed by 3pm on 4 December 2025.

30. By 5 December 2025, the issues between the parties had narrowed to only one, namely costs. I made final orders, save for costs. Submissions have then been provided on costs.

31. I should add that on 3 December 2025 a further affidavit of the defendant was filed annexing some correspondence that the defendant had had with the proposed selling agent to the effect that the Property should not be sold without a lease. The current tenant in the Property is apparently de-registered and has not yet been re-registered and has not paid all rent arrears.

32. The plaintiff contends that the above chronology demonstrates that the defendant has behaved unreasonably and has forced the plaintiff to incur unnecessary costs. The defendant relies on the decision of Jagot AJ in Spathis v Nanos (No 2) [2008] NSWSC 470 (Spathis).

33. The defendant contends that each party ought to bear their own costs. The defendant disputes the contention that he behaved unreasonably. He contends that he never opposed the sale of the relevant Property and that since the summons was filed on 12 September 2025, the area of dispute between the parties has concerned the mechanism for the sale of the Property. The costs orders proposed by the defendant were said to fairly reflect that both parties were responsible for the way the matter developed and the ultimate orders that were made, which developed from the proposed orders in the summons.

34. The principles with respect to costs in s 66G applications are well settled. Those principles are neatly encapsulated by Williams J in Eva Joy Ambrus v Lee Ellen Buchanan (No 2) [2023] NSWSC 5 at [4]-[6]:

[4] The Court has a discretion under s 98 of the Civil Procedure Act 2005 (NSW) to make an order for costs determining by whom, to whom and to what extent costs are to be paid. In proceedings under s 66G of the Conveyancing Act, that discretion is usually exercised by ordering that the parties’ costs to be paid out of the proceeds of sale of the land, the rationale being that the costs of the proceedings are an incident of joint ownership: Kardos v Sarbutt (No. 2) [2006] NSWCA 206 at [28] (Brereton J (as his Honour then was), Basten JA and Hunt AJA agreeing); Chow v Chow (No 2) (2015) 18 BPR 35,385; [2015] NSWSC 1348 at [7]-[8] (Young AJA); Chetwynd v Rose [2021] NSWCA 193 at [120] (White JA, Meagher and Leeming JJA agreeing).

[5] The usual rule generally extends to the costs of an unsuccessful defendant who has properly advanced substantial arguments in support of an estoppel or contractual or fiduciary obligation which may have afforded a good reason to decline to appoint trustees for sale, although the arguments ultimately failed: Stone v Stone (2014) 17 BPR 33,443; [2014] NSWSC 1655 at [51]-[52] (Darke J); Norris v Norris [2021] NSWSC 1676 at [25]-[26] (Robb J).

[6] However, unreasonable conduct on the part of a party that results in costs being incurred unnecessarily may warrant a departure from the usual rule. As Darke J explained in Stibbard-Leaver v Leaver [2021] NSWSC 65 at [5]:

“I observe at this point that in litigation of this type under s 66G of the Conveyancing Act, it is usual to order that the costs of the proceedings be paid out of the proceeds of sale. The rationale for this approach is that the costs of such an application are an incident of joint ownership (see Kardos v Sarbutt (No 2) [2006] NSWCA 206 at [28]). It remains the case of course that unreasonable conduct by a party may be a basis to conclude that some other order is appropriate in a s 66G case. Lewin v Lewin [2019] NSWSC 380 is an example. In that case, it was held that certain unreasonable conduct led to an unnecessary incurring of costs. However, as I noted in that case (at [41]), a co-owner is ordinarily under no obligation to seek to avoid a need to bring a s 66G application (see also Chow v Chow (No 2) [2015] NSWSC 1348 at [12] where it was stated by Young AJA that co-owners have no obligation to negotiate their dissolution).”

35. I do not regard the conduct of either party in the present circumstances as warranting any departure from the usual order as to costs in s 66G matters.

36. It seems quite clear that there has been a breakdown in family relationships. The correspondence contains allegations of intimidation by the defendant against the plaintiff. The defendant has denied those allegations. I am in no position to reach a concluded view as to who is blame in this regard.

37. The chronology demonstrates that there were discussions between the parties (at least through the plaintiff’s solicitor) before the proceedings were commenced and the parties were unable to reach an agreement. I do not regard the defendant’s conduct as set out in the correspondence as warranting a departure from the usual costs order. It is to be remembered that as Darke J explained in Stibbard-Leaver v Leaver [2021] NSWSC 65 at [5] that a co-owner is ordinarily under no obligation to seek to avoid a need to bring a s 66G application.

38. Again, after the proceedings were commenced, I do not regard the conduct of the defendant as warranting a departure from the usual costs order. After the proceedings were commenced the principal debate between the parties was around the manner in which the Property would be sold. It is clear that the defendant wanted the Property sold without the appointment of trustees and had a view about how it should be sold. This cannot be said to be unreasonable conduct so as to lead to a different costs order. I do not regard the defendant’s misguided legal position that only one trustee should be appointed as warranting a departure from the usual costs order. It was obviously well intentioned in an attempt to save costs and was short lived.

39. I do not regard the decision of Jagot AJ in Spath**is as mandating the same outcome in the present case. The facts in Spathis were quite different to the present case. In that case, orders for the appointment of trustees were always strenuously opposed by the defendant and there was a need for a final hearing at which serious allegations were made against the plaintiff. The facts of the present case are quite different.

40. The order of the Court is:

41. The parties’ costs of the proceedings, calculated on the ordinary basis as agreed by the trustees for sale or assessed, be paid out of the net proceeds of the sale of the Property after the payment order in 7(d) of the orders made on 5 December 2025, but before the payments ordered in 7(e) made on 5 December 2025.

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