Theocharous v Theocharous

Claim for possession

1. There was no dispute that, as the legal owner of the Marshall Street property, Andrew was prima facie entitled to possession of it. Harris' claim to a life estate by way of proprietary estoppel was not pursued. Counsel intimated that the claim for a Crisp order in the family provision proceedings would not be pursued either. Counsel for Harris did not consent to an order for possession, but he advanced no opposition to the making of such an order.
2. A formal affidavit from Andrew was read in support for the claim of possession. There was no objection and no contrary evidence. I was satisfied that Andrew was entitled to possession and an order should be made. No evidence or submission having been presented in support of the cross-claim, it had to be dismissed. The parties agreed that the issue of the writ of possession should be stayed for 28 days to allow Harris to vacate the property.

Costs

1. The major issue between the parties concerned the costs of the proceedings. I heard evidence and submissions from counsel for both parties on this issue. Before addressing the issues which arise, I should say something more about the procedural history.
2. As already mentioned, the deceased died in June 2023, leaving Andrew as the executor appointed under her last will and Harris in occupation of the Marshall Street property. Four months later, in late October 2023, Andrew and his son George entered into negotiations which resulted in the exchange of contracts to sell the property.
3. Only the first page of the contract was in evidence. It was in the Law Society standard form (2022 edition). The sale price was $1.3 million, and the contract was dated 28 October 2023. The purchasers were Thanh Hue Pham and Tien Dung Le. They apparently have no connection with any of the family members and I will refer to them as the "External Purchasers". The vendor was described as the deceased, even though she had been dead for four months, but it seems the contract was actually signed by Andrew as her executor.
4. According to affidavit evidence from Harris, he became aware of the negotiations with the External Purchasers on 28 October and discussed them by telephone with Andrew and George. During the telephone discussions, Harris proposed that his son, also called George, would buy the property for $1.2 million to "keep it in the family" (Harris himself is unemployed and says that he has no assets; his son George, however, appears to be financially successful).
5. Harris deposed that Andrew offered to sell the property to George for $1.2 million and Harris accepted on the spot, but Andrew's son George then imposed the condition that the deposit be paid forthwith, which condition could not be complied with (the telephone conversations happened on a weekend). The proposal, or offer, from George to buy the property went no further. Harris' evidence did not identify whether the telephone discussions took place before or after the contract with the Purchasers was signed, or address the fact that the Purchasers were apparently prepared to pay $100,000 more for the property than had been offered by George.
6. The contract was prepared by a conveyancing firm on Andrew's behalf. When it came to the attention of the solicitors acting for Andrew in the proceedings, a question arose about the vendor being identified as the deceased rather than as Andrew (as the deceased's executor). On 27 November 2023, Andrew's solicitors wrote to Harris' solicitors saying that the contract was "void".
7. I am not sure whether, strictly speaking, this was correct. Depending upon whether the External Purchasers were aware that the deceased had died, and other elements of the matrix of fact, the contract might have been enforceable as between the Purchasers and Andrew. Although at the time Andrew had not obtained probate, he later did so and his title therefore would have related back to the date of the deceased's death: Probate and Administration Act 1898, ss 44, 61. But there is no need to go into this question for present purposes. The contract was apparently thereafter treated by all concerned as having gone off.
8. In the meantime, the family provision proceedings had been commenced by summons. The summons was filed on 2 November. It included the following claim on behalf of Harris: An order that provision be made for the First Plaintiff's maintenance, education and advancement in life pursuant to Section 59 of the Succession Act 2006 out of the estate of Finikou Theocharous, late of Yagoona, in the State of New South Wales, deceased (the Estate).
9. This claim provided no definition of the further provision Harris was seeking. But counsel for Harris referred me to later correspondence between the solicitors for the parties in the family provision proceedings which, in counsel's submission, made the position clear. The earliest reference was to a letter from Harris's solicitors to Andrew's solicitors, of 27 February last year. Harris' solicitor wrote: … even though our office is not required to put on Summons the relief being sought in the proceeding, our client Harris Theocharous seeks to claim a life estate in the estate property. In that regard, our client is entitled to lodge a caveat on the basis of the interest and on the basis that you do not seek to provide the relevant undertaking not to sell or otherwise dispose of the property pending the determination of our clients' claims.
10. It seems that no such undertaking was given, but no caveat was lodged at the time either. About three months later, on 3 June last year, Andrew entered into a further contract for the sale of the Marshall Street property to the External Purchasers. The purchase price was $1.3 million. The vendor was (correctly) named as Andrew.
11. It seems that Harris' solicitors became aware of exchange of the second contract on 20 June. On that date they wrote to Andrew's solicitors seeking, among other things: a copy of the contract; a copy of any valuation obtained as part of the process of listing the property for sale; "details of the circumstances of how the purchaser was located"; how the purchase price was reached and "how the purchase price was reached between the parties"; and the date of settlement. On the following day, Harris' solicitors followed up with a further email in which he stated, among other things: We note that our office has previously requested provision of disclosure as associated with the sale of the property, noting our clients have opposed the sale of the property, thereafter being advised that the sale was not being proceeded with. It is our view that the contract which is purported to have been exchanged at auction was not validly prepared and that the executor has exposed the Estate to liability. If it is the case that the executor has authorised a subsequent exchange in order to avoid his own liability, such is a fact in issue in the proceedings. If it is the case that the material requested both above and per our previous correspondence yesterday is not provided informally by way of this request for discovery, we note that we will seek formal production as necessary by way of subpoenas and notices to produce.
12. In response, Andrew issued a formal "notice to terminate tenancy agreement" requiring Harris to vacate the Marshall Street property by 30 July 2024. There was in fact no formal tenancy agreement between the deceased and Harris, or between Andrew as executor and Harris, but the notice was presumably intended as a notice requiring vacant possession.
13. Andrew's position was put with complete clarity on 4 July in a letter from Andrew's solicitors to Harris' solicitors: A claim pursuant to Chapter 3 Succession Act 2006 (NSW) does not rise to any: caveatable interest; defence to a claim for possession; or justification for Harris' occupation of the property; and our client as the legal representative of the deceased's estate is absolutely entitled to possession [citation omitted]. Accordingly, Harris has no legal right occupy the property and does so without the permission of the executor. We hereby make demand for Harris to vacate the property by no later than 4:00 pm on Thursday, 18 July 2024. Should Harris fail to vacate the property by the above date and time, we have instructions to commence proceedings for possession without further notice to your client. Please confirm that you have instructions to accept service. We will rely on this correspondence on the question of costs of any proceedings for possession of the property.
14. When this letter was sent Andrew's solicitors had not responded to the request by Harris' solicitors for a copy of the contract and for other information about the sale of the Marshall Street property. Eventually, a copy of the contract was provided on 8 July.
15. Again, the contract used the Law Society standard form, together with additional special conditions. The first page identified the date for completion as "42 days after the date of this contract". Standard clause 15 provided: Date for completion The parties must complete by the date for completion and, if they do not, a party can serve a notice to complete if that party is otherwise entitled to do so.
16. Special condition 49 provided: 49. Completion 49.1 Settlement is subject to the Vendor being able to register a Discharge of the Mortgage from Noel William Irving within a period of six (6) months from the date hereof and completion shall take place as follows:- (a) within seven (7) days of the vendor's solicitors giving written notice to the purchaser or the purchaser's solicitor that the Discharge of Mortgage is registered or will be registered on the date of settlement in the Pexa settlement workspace; or (b) 42 days from the date hereof; whichever is the later. 49.2 In the event of the Discharge of Mortgage not being registered within three (3) months from the date of exchange the purchaser shall have the right to rescind this Agreement and the provisions of Clause 19 shall apply. 49.3 If the purchaser does not rescind this Agreement after three (3) months from the date hereof then in the event of the Discharge of Mortgage not being registered within six (6) months from the date of exchange then either party may rescind this Agreement and the provisions of Clause 19 shall apply.
17. On 10 July, Harris' solicitors wrote to Andrew's solicitors concerning the terms of the contract. They stated: On review of the Contract for Sale: 1) Such provides for a condition precedent which our office has not received; 2) The critical date for settlement to take place is not until: a. The issuing of a notice to complete; and b. 14 days having passed until after the issuing of a notice to complete. We note that, as a consequence of the property being required to be vacated, that our client would be made homeless and has no other form of accommodation available to him. Accordingly, it is evident that the Bankstown property ought not to be sold and that an injunction would be granted to prevent the sale. Accordingly, we seek for urgent confirmation to be provided by the Defendant that: 1) The Defendant is to provide an undertaking not to proceed with the sale; 2) The Defendant is in a position to proceed to settlement of the Bankstown property; and 3) If the Defendant is in a position to proceed to settlement of the Bankstown property, confirmation that the Defendant will not proceed to settlement unless they agree that Harris Theocharous will be provided with reasonable relocation and accommodation expenses, as he has no immediate means for shelter, such being in the form of a Crisp order in his favour. We ask that you please urgently attend to provision of the above and provide same no later than 4:00 pm on Thursday, 11 July 2024.
18. On 11 July Harris' solicitors followed up with a further letter which made various points and requests for information bearing upon Andrew's conduct as executor and foreshadowed a possible application for his removal. The letter also stated: … in circumstances where our client Harris Theocharous would be made homeless should he be required to vacate the Bankstown property, also noting his present and specific health and financial circumstances, we put you on notice that Harris Theocharous will not vacate the Bankstown property until and unless we are provided with sufficient information, in the form of full and frank disclosure of: 1) Precisely when a settlement for the Bankstown property is legally required to occur; and 2) All correspondences as exchanged between the Executor and the purchaser (noting that if a ten then twelve week period was being offered at the mediation, there must have been some basis within the mind of the Executor that would lead him to conclude that the purchaser would be agreeable to or otherwise the contract would permit a ten to twelve week settlement period). … we await provision of all the information and full and frank disclosure regarding the above matters and, in the interim, reiterate that Harris Theocharous will not be vacating the Bankstown property, particularly in circumstances where both your agent and your office, presumably in full knowledge of the circumstances of the Contract for Sale and the purported of the sale of the Bankstown property, cannot confirm the precise date that you are seeking for Harris Theocharous to vacate the Bankstown property.
19. On the following day, 12 July, an agent acting under the instructions of Harris' solicitors prepared a caveat over the Marshall Street property (the caveat itself appears to have been lodged on 15 July). The caveat relevantly stated: ESTATE OR INTEREST CLAIMED Life Estate By virtue of: Beneficial Interest In Deceased Estate Details Supporting The Claim: Caveator claims a life interest in the property by virtue of conduct and agreement.
20. Andrew's solicitors did not provide the undertaking which had been requested in correspondence. On 22 August, formal notice was given for the caveat to lapse. No proceedings were brought to extend the caveat, and as a result it expired in September. The possession proceedings were commenced about a month later, on 11 October last year.
21. Three issues arose concerning the costs of the proceedings. I will address them in turn.

Liability for costs inter partes

1. Counsel for Andrew sought an order against Harris for the costs of the possession proceedings. This was opposed by counsel for Harris, who contended that no costs order should be made inter partes, and instead Andrew's costs should be left to be paid out of the estate, as an expense of the administration, with Harris bearing his own costs.
2. In support of his contention, counsel for Harris submitted that the correspondence from Harris' solicitor, beginning in February last year, had repeatedly made it clear that Harris was claiming a "life interest" in the Marshall Street property in the proceedings. Counsel also noted that there was no evidence that the External Purchasers were pressing to complete the sale.
3. In these circumstances, counsel characterised the bringing of the possession proceedings as unnecessary and unwarranted. Counsel criticised the failure by Andrew's solicitors to provide information about the sale and what counsel described as the "alleged" urgency in completing it. Counsel added that if there had been any real urgency, the proper course would have been to approach the Probate Registrar to refer the question to a Judge under Practice Note SC EQ 7 [11], rather than launching separate proceedings in the Possession List.
4. If counsel were correct in submitting that the making of the possession claim was in some way unwarranted, then it would hardly seem satisfactory for Andrew's costs of bringing that claim to fall on the estate at all. Rather, the appropriate costs order would be for Andrew personally to bear the costs of the claim. But I do not think that counsel's submission is correct.
5. The starting point is that the registered owner of property is entitled to possession of it. A claim by way of proprietary estoppel to a life estate in the property, if successful, may result in the owner being required to convey a life estate to the claimant. To that extent it may ultimately trump the owner's right to possession. Even so, it requires protection by a caveat in the meantime, and if the owner gives a lapsing notice, the claimant will be required to demonstrate grounds for extending the caveat until determination of the claim.
6. A claim for provision in the form of a Crisp order is in an even weaker position. If an order for provision is ultimately made, it takes effect as a codicil to the deceased's will. For practical purposes, it can only result in the grant of a legal or beneficial life interest if the property remains available after the creditors of the deceased's estate, and testamentary and administrative expenses, have been fully satisfied.
7. Furthermore, such a claim does not give rise to a caveatable interest: Dodd v Dodd [2020] NSWSC 1094 at [5]; Byrd v Margiotta [2023] NSWSC 1556 at [93]. Although it may be possible to obtain an interlocutory injunction until the hearing of the claim, that will require the claimant to demonstrate a sufficient likelihood of obtaining the order providing for occupation of the property, and also to discharge the balance of convenience. Often that will require the claimant to pay some form of occupation fee until the claim is determined. Some of the pitfalls which a claimant may face are illustrated by Le v Angius [2022] NSWSC 240, see in particular at [70]-[83].
8. The letter from Harris' solicitors of 17 February 2024 which first articulated his claim to the property was sent in the context of family provision proceedings. Those proceedings had been commenced by summons (as is usual), not by statement of claim. In the context, the claim asserted did not encompass, or at least did not clearly encompass, a claim to a life estate by way of proprietary estoppel. To propound such a claim it would have been necessary to seek the relevant relief (an order for conveyance of a life estate) expressly and to plead the supporting facts.
9. In passing, it should be noted that, even if understood only in the context of a family provision claim, there were problems with the confident assertion in the letter that Harris' summons did not need to articulate "the relief being sought in the proceeding". Evidently Harris' solicitors thought that it was sufficient for a plaintiff in family provision proceedings, in the originating process, simply to claim an order "for further provision" without specifying what that further provision actually was. In my view, this was not correct.
10. Originating process must "specifically state" the relief sought by the plaintiff: Uniform Civil Procedure Rules 2005 r 6.12(1). Ordinarily, this is done by setting out the terms of the order which the plaintiff wishes the Court to make.
11. It is true the Court is not bound by the form of the prayers for relief and may adjust them according to the rights of the plaintiff as ultimately found (provided that this does not take the defendant by surprise). But it remains good practice to ensure (by amending the prayers for relief if necessary) that they reflect the terms of the orders which the plaintiff will ultimately ask the Court to make. This is not only a benefit to the Court and to the defendant. It also helps the plaintiff to focus on the formulation of the prayers for relief, since that may draw attention to a requirement for the pleading of further facts or the adducing of further evidence in support of the relief so formulated.
12. I see no reason why, in principle, the practice in family provision proceedings should be any different. The Succession Act 2006 s 65, relevantly provides: 65 Nature of orders (cf FPA 11 (1) (a) and (d)) (1) A family provision order must specify - (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the Court. (2) A family provision order may require the provision to be made in one or more of the following ways - (a) by payment of a lump sum of money, (b) by periodic payments of money, (c) by application of specified existing or future property, (d) by way of an absolute interest, or a limited interest only, in property, (e) by way of property set aside as a class fund for the benefit of 2 or more persons, (f) in any other manner the Court thinks fit.
13. In my view, proper practice requires that the originating process in family provision proceedings contain a prayer for relief expressed in the terms specified in s 65. There may be cases where the plaintiff has difficulty in specifying the proper extent of provision claimed because of a lack of information about the value of the estate. But this difficulty will usually be overcome by directions for the filing of an affidavit from the executor at an early stage of the proceedings (see Practice Note SC EQ 7 at [18]). There is no good reason why the case should go to trial without a full specification of the relief claimed by the plaintiff.
14. There are particular reasons why it is salutary to follow this practice in family provision proceedings. An application for provision should delay or interfere with the realisation of the estate assets, or with the distribution of those assets, only to the extent absolutely necessary. Precise identification of the orders sought by the plaintiff may allow unaffected assets to be realised and distributed in accordance with the executor's obligations. It is also apt to focus attention on which beneficiaries' interests are in contest in the litigation, which may ultimately be an important factor in settlement and in the incidence of costs.
15. One question which sometimes arises is whether a plaintiff who seeks a further provision by way of a legacy or a share of residue should be required to put a numerical figure on the claim. It is sometimes said that the plaintiff has no obligation to do so because the formulation of relief, if the plaintiff is successful, is a matter of discretion for the Court.
16. It is unnecessary to go into this question for present purposes. The relief foreshadowed on behalf of Harris was a Crisp order, namely a provision creating a testamentary trust to provide accommodation for Harris for the rest of his life: Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979, unreported) Milillo v Konnecke [2009] NSWCA 109 at [47]-[48]. The terms of that order, including the terms of the trust sought, could and should have been specified in the originating summons.
17. Andrew's solicitors were therefore clearly right to point out in their letter of 4 July last year that the foreshadowing of a claim to the Marshall Street property in correspondence was no answer to Andrew's right to possession (see [43] above).
18. It is true that following that letter, Harris' solicitors caused a caveat to be lodged. But that caveat was manifestly defective. It did not set out the facts and circumstances upon which the alleged interest was based. Even more importantly, when the caveat was challenged by the service of a lapsing notice, Harris' solicitors did not apply to extend it. Not until several months later was the claim revived (belatedly) in Harris' cross-claim in the possession proceedings.
19. Nor did Harris' solicitors make any application for an injunction. Effectively their position was that once a claim had been articulated on behalf of Harris, even if not a proprietary claim, the status quo, in the sense of Harris' continued occupation of the property, should be maintained, and it was up to Andrew to demonstrate circumstances of urgency so as to depart from it.
20. In my view this was precisely the wrong way to look at the matter. Andrew's obligation as executor was to realise the property as part of the deceased's estate and distribute the proceeds in accordance with the terms of the will. The onus lay on Harris to establish good reasons for deferring the performance of those obligations. Neither Andrew as executor nor the External Purchasers had any obligation to demonstrate some super-added urgency in the completion of the sale contract. If any application was to be made under the Practice Note, it should have been made by Harris rather than Andrew.
21. It is far from clear that an injunction, if sought, would have been granted. At the time, a claim had been made by the nursing home in which the deceased had lived prior to her death for a substantial amount by way of unpaid fees. It was questionable whether there would be sufficient assets in the estate to allow the property to be made available to Harris by way of further provision, even assuming that Harris' claim succeeded and the claims by the deceased's other children (including that by Harris' co-plaintiff Mario) failed. The making of a Crisp order would have exacerbated the position, since it would have been necessary to provide out of the estate for the costs of constituting and administering a trust over the Marshall Street property (and such other property as might be acquired as a replacement) for the rest of Harris' life.
22. And there was an even more fundamental problem: the intervening contract with the External Purchasers. I am not sure that it was correct to say that there was no obligation on Andrew to complete the sale until a notice to complete was given by the Purchasers. The basis for that submission was not fully exposed in argument, but I find it difficult to see how it can be justified on the terms of the contract that I have set out above. The date of completion was six weeks after the date of entering into the contract and this was so irrespective of whether a notice to complete was issued.
23. Without a notice to complete, the Purchasers could not have obtained specific performance. But this did not alter the fact that in failing to complete on the specified contractual date, Andrew was in breach. On the face of it, after that date, he was liable for such damages as the Purchasers might have incurred as a result of the delay in completion.
24. That, it seems to me, was the prima facie position based on the standard terms of the contract. There was no evidence before me about the satisfaction of the mortgage condition in special condition 50. But even if that condition had not been satisfied, so that the date of completion had not arisen, that would not have answered the fundamental point. The External Purchasers had, on the face of it, acquired in good faith an equitable interest in the property. It is difficult to see how the Court could ever have made an order in Harris' favour overriding their rights.
25. In these circumstances, I think that Andrew's solicitors were fully justified, following the lapse of the caveat and the failure to seek an injunction, in instituting a claim for possession. Andrew had no obligation to acquiesce in Harris' continued rent-free occupation of the property. Indeed, it might have been contrary to his obligations as executor to have done so.
26. Andrew's possession claim could, it is true, have been made by way of cross-claim in the family provision proceedings. But given that Harris had effectively abandoned any proprietary claim to the property, I think that it would be going too far to criticise Andrew's solicitors for instituting proceedings in the Possession List (which is the specialist list for the purpose). In any event it is unlikely that any additional costs of instituting separate proceedings would be significant in the scheme of things.
27. In the end, the simple fact is that Harris failed in the possession proceedings and he failed in his proprietary estoppel claim. It is straightforward of applying the general rule that costs follow the event (UCPR Rule 42.1).

Liability for costs common to both proceedings

1. As already mentioned, the possession proceedings were managed and prepared for trial alongside the family provision proceedings. The result is that there will inevitably have been some overlap between the costs of the two proceedings. The costs will fall into three categories: (1) costs solely referable to the family provision proceedings; (2) costs solely referable to the conduct of the possession proceedings; and (3) costs common, in the sense of being equally attributable, to both proceedings.
2. The question arises, now that I have concluded that an order should be made against Harris for Andrew's costs of the possession proceedings, but the family provision proceedings remain pending, whether the costs order in the possession proceedings should carry with it the costs common to the two proceedings, or some share of those costs.
3. Counsel for Andrew initially suggested that this was a matter which could be left to determination by the costs assessor. I did not agree. As will be seen below, the question depends upon the terms of the costs order made by the Court. The form of that order cannot be altered by an assessor in subsequent assessment proceedings (or, it would seem, even by the Court itself, because of the rule in Woods v Sheriff of Queensland (1895) 6 QLJ 175). I therefore considered that the question had to be dealt with when making the costs order.
4. Counsel for Andrew then submitted that the common costs should follow the costs of the possession proceedings. Counsel for Harris contended to the contrary, submitting that the common costs should follow the outcome of the family provision proceedings.
5. A somewhat similar costs issue reached the House of Lords in Medway Oil and Storage Co, Ltd v Continental Contractors, Ltd [1929] AC 88. The plaintiff brought a large commercial claim against the defendant. The defendant resisted the claim and made its own cross-claim against the plaintiff. Both the plaintiff's claim and the defendant's cross-claim were dismissed with costs.
6. Their Lordships accepted that whether the common costs should have followed the claim, or the cross-claim, or should have been apportioned between the two claims, had been a matter for the discretion of the trial judge. But as a matter of interpretation of the trial judge's order, the dismissal of the plaintiff's claim carried with it the common costs, so that the defendant was liable solely for the costs referable to its unsuccessful cross-claim.
7. In the present case, it seemed to me that the same result should follow. The family provision proceedings were commenced first and covered a broader field than the possession proceedings. In that sense, they were the principal proceedings between the parties. I therefore concluded that the common costs should follow the result of the family provision proceedings. In order to avoid any doubt about the matter, I made an order expressly providing that Harris' liability under the costs order in the possession proceedings was to be confined to costs solely referable to those proceedings.
8. While, as already noted, I considered that the question of liability for costs was to be determined by order of the Court rather than by the assessor, I should point out that the assessor may still have an important role to play in quantifying the costs. I also referred to this in Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd (No 3) [2024] NSWSC 1483 at [178]. The costs solely referable to an unsuccessful claim are not confined to single items of cost (such as a filing fee). Where professional fees have been charged for tasks referable to more than one claim, such as drafting or appearing in court, it may be possible to make an assessment of the degree to which the cost was increased by the unsuccessful claim for the purpose of determining the unsuccessful party's liability for the costs of that claim.

Application for indemnity costs

1. Finally, counsel for Andrew applied for an indemnity costs order based on Harris' failure to accept a written offer of compromise which was served shortly before the hearing. The offer provided for Andrew to receive an order for possession in his favour and for the cross-claim to be dismissed (as the Court ultimately ordered). But it also provided, in Harris' favour, for his costs (on the ordinary basis) up to and including the date of the offer to be paid out of the estate. The offer was served on 29 January and was expressed to expire at 4pm the following day, 30 January.
2. The offer was expressed to be made under, and in accordance with, the Rules. Counsel for Harris did not dispute its validity for that purpose. Counsel also accepted that the offer had been more favourable to Harris then the eventual outcome of the proceedings, and that the time provided for consideration of the offer had been reasonable.
3. Given these concessions, the Court was obliged to award indemnity costs from the date of expiry of the offer unless there was some good reason to order otherwise: UCPR r 42.14. Counsel for Harris accepted that he could not advance any such reason. It followed that an indemnity costs order had to be made for the period after 4pm on 30 January.

Orders

1. The orders the Court made on 4 February were: 1. Order that the Plaintiff have possession of the land comprised in Folio Identifier Lot 6 in DP 12384, being the land situated and known as 19 Marshall Street, Bankstown NSW 2200. 2. Order that the cross-claim be dismissed. 3. Order granting leave to the plaintiff for the issue of a writ of possession. 4. Order for the issue of a writ of possession of the land comprised in Folio Identifier Lot 6 in DP 12384, being the land situated at and known as 19 Marshall Street, Bankstown NSW 2200. 5. Order that execution of any writ for possession be stayed for 28 days from the date of the making of these Orders. 6. Note that the proceedings were prepared for hearing alongside proceedings 2023/348486 ("the family provision proceedings"), which proceedings remain pending. 7. Order that the defendant pay the plaintiff's costs of these proceedings, including the cross-claim, apart from costs common to the family provision proceedings, on the ordinary basis up to 4pm on 30 January 2025, and thereafter on the indemnity basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2025