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[2026] NSWSC 173
General information, not legal advice.
Supreme Court of NSW
2026-03-09
Hammerschlag CJ in Eq
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Lukac v Kassis (Final orders and costs) [2026] NSWSC 173
Hearing dates: On the papers
Date of orders: 9 March 2026
Decision date: 09 March 2026
Jurisdiction: Equity
Before: Hammerschlag CJ in Eq
Decision: (1) Judgment for the first plaintiff against the defendants for $300,551 inclusive of pre-judgment interest to 25 February 2026.
(2) Judgment for the second plaintiff against the defendants for $241,897 inclusive of pre-judgment interest to 25 February 2026.
(3) The defendants are to pay 90% of the plaintiffs’ costs as agreed or assessed.
Catchwords: COSTS – Uniform Civil Procedure Rules 2005 (NSW) r 42.34 – where plaintiffs each achieve a judgment against the defendants for less than $500,000 but the combined total exceeds this amount – where plaintiffs abandon a claim of fraudulent concealment at the commencement of the trial – HELD – defendants should pay the plaintiffs 90% of their costs
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 42.34
Interpretation Act 1987 (NSW), s 8(b)
Cases Cited: Lukac v Kassis [2026] NSWSC 120
Category: Costs
Parties: Yvette Lukac (First Plaintiff)
Linda Michele Murphy (Second Plaintiff)
Anthony Espero Kassis (First Defendant)
N & N (No. 1) Pty Ltd (Second Defendant)
Representation: Counsel:
J Kelly SC (Plaintiffs)
A Moses SC / K Anderson (Defendants)
Solicitors:
PJ Ellis Solicitors & Attorneys (Plaintiffs)
Hudson Law (Defendants)
File Number(s): 2022/00384566
Publication restriction: Nil
On 25 February 2026 I delivered the principal judgment: Lukac v Kassis [2026] NSWSC 120. At paragraph [52] I ordered that there be judgment respectively for the first plaintiff and the second plaintiff in stated money amounts, together with pre-judgment interest. In paragraph [54] I said that I would hear the parties on costs and on any remaining issues or arithmetical adjustments. I directed the parties to confer. They did. They have agreed as to the amounts of the judgments (including pre-judgment interest). The consequence is that the final judgments will be:
for the first plaintiff against the defendants for $300,551 inclusive of pre-judgment interest to 25 February 2026; and
for the second plaintiff against the defendants for $241,897 inclusive of pre-judgment interest to 25 February 2026.
The parties are at odds about costs. I received written submissions from both sides.
It is appropriate to deal with the defendants’ position first. The defendants say that:
the plaintiffs should not get their costs because Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.34 (which is set out below) applies; and
the plaintiffs should pay 50% of their costs because the plaintiffs maintained and then abandoned an unsustainable allegation that the defendants had engaged in fraudulent concealment.
UCPR r 42.34 provides:
42.34 Costs order not to be made in proceedings in Supreme Court unless Court satisfied proceedings in appropriate court
(1) This rule applies if—
(a) in proceedings in the Supreme Court, other than defamation proceedings, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $500,000, and
(b) the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants.
(2) If the proceedings could have been commenced in the District Court, an order for costs must not be made unless the Supreme Court is satisfied that the commencement and continuation of the proceedings in the Supreme Court was warranted.
The plaintiffs for their part argue, relying on s 8(b) of the Interpretation Act 1987 (NSW), that UCPR r 42.34(1)(a) does not apply because where it refers to plaintiff this should be construed as including the plural and, together the plaintiffs met the $500,000 threshold. They argue that, if it does apply, in any event the trust case they brought, even though it failed, could not have been commenced in the District Court. They argue that the matter involves sufficient complexity to warrant its being brought and maintained in this Court.
Whether or not UCPR r 42.34(1) is enlivened where two plaintiffs in one proceeding each achieve an individual judgment of less than $500,000 but a combined total of more, is not necessary to decide here. In my opinion, although these were individual claims they were properly brought together because of their common factual substratum which included, but was not restricted to, the Courtenay House Ponzi scheme. The conduct they each complained of bore a striking similarity and, in the end, the substance of their respective complaints was not contested. The substance of the matter is that the moving parties met the $500,000 threshold. It is not necessary to deal with the plaintiffs’ other contentions as to why they were justified in coming to this Court. It is apt to observe, however, that the plaintiffs would have been entitled to their costs had they each sued separately in the District Court and achieved what they have done in this case. Here the defendants have been the beneficiary of the obvious economies that were achieved by the plaintiffs suing together, there being one set of pleadings, their cases being heard together and being represented by only one set of solicitors and counsel.
The defendants put that the plaintiffs should pay 50% of their costs because the plaintiffs maintained, until late in the piece, a fraudulent concealment case. They observe that this was an extremely serious allegation of fraudulent involvement in a Ponzi scheme where its main architect received a lengthy sentence of imprisonment. They argue that a considerable portion of the defendants’ evidence was specifically directed at refuting this assertion and a significant proportion of their opening submissions were necessarily prepared prior to the plaintiffs’ belated abandonment of the fraudulent concealment case.
I think there is some substance in this contention and that some allowance should be made for it in the defendants’ favour, although ordinarily the Court does not determine costs by reference to issues that failed and issues that succeeded. The appropriate allowance plainly does not extend to an order that the plaintiffs pay any of the defendants’ costs given the defendants’ wholesale loss of the case, and that they fought on anyway even after the fraudulent concealment case was given away. It is difficult to see precisely what endeavours would have been required by the defendants in connection with the fraudulent concealment claim in addition to those which they made in any event. But that having been said, I still think a reduction is warranted because a serious claim was entirely abandoned before the hearing began. Taking a rough and ready approach, as I must, I consider that the plaintiffs’ costs should be reduced by 10%.
The defendants should pay 90% of the plaintiffs’ costs as agreed or assessed.
The following are the final orders of the Court:
Judgment for the first plaintiff against the defendants for $300,551 inclusive of pre-judgment interest to 25 February 2026.
Judgment for the second plaintiff against the defendants for $241,897 inclusive of pre-judgment interest to 25 February 2026.
The defendants are to pay 90% of the plaintiffs’ costs as agreed or assessed.
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Lukac
Kassis