Zepinic v Chateau Constructions

The Zepinic Motion

The Zepinic Motion sought: "1 Pursuant to r36.16 of the UCPR 2005, to set aside the Court decision delivered on 19 March 2020 (Court case No: [2020] NSWSC 269). 2 Defendant (Nicholas Craig Malanos) to deliver to the Court and to the Plaintiff the Trust Deed for both "[the Property] Trust" and "Mr & Mrs Zepinic Trust", copies of all invoices, receipts, releases, investments, evidence of any purchases, sales, dispositions, bank statements; transactions, and ATO assessments. 3 Pursuant to r36.15(1) of UCPR 2005, to invalidate (void) judgment delivered by Darke J on 13 September 2013 (Case No: 2009/290598). 4 Pursuant to r36.15(1) of UCPR 2005, to invalidate (void) judgment delivered by Darke J on 11 August 2014 (Case No: 2009/290598). 5 Invalidate (void) the "Contract for the sale of land - 2005 edition" between Nicholas Craig Malanos and Yin Ye signed on 15 November 2014 of selling [the Property], or alternatively a) Order to transfer into the Plaintiff's account the amount of $280,845.48 paid in the Court account by the Bridges lawyers on 15 February 2018 ($221,149.19) and on 23 March 2018 ($56,696.29). b) Defendant to pay the Plaintiff amount of $850,345.20 being the balance of the proceeds of the sale of [the Property]. c) Defendant to pay the Plaintiff amount of $104,292 being the loss of rent, plus interest from 28 November 2014. d) Defendant to pay the Plaintiff amount of $47,026 being for the loss of personal valuables, plus interest from 19 December 2014. e) Defendant to pay interest to the Plaintiff on $1,131,190.68 from 19 December 2014 until 23 March 2018, and thereafter the interest on $850,345.20. 6 Defendant to pay the Plaintiff's costs and disbursements on indemnity basis."
I pause immediately to note that Mr Zepinic accepted that the relief sought in prayers 2 and 5 (including subparagraphs (a) to (e)) were all matters in relation to which leave had been refused in the Principal Judgment (see paragraphs [29]-[32] of the Principal Judgment for the relief in respect of which Mr Zepinic had sought leave). Mr Zepinic candidly said that the basis of his present application was that he disagreed with the Principal Judgment.
Mr Zepinic also accepted that the relief in prayers 3 and 4 of his notice of motion was new and had not been the subject of his application which had been refused by the Principal Judgment.
UCPR Part 36 r 36.16 provides: "(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if - (a) it is a default judgment (other than a default judgment given in open court), or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it - (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order."
Mr Malanos and Chateau opposed the Zepinic Motion on two grounds: 1. The motion itself required leave under the Act and, in the absence of such leave, was dismissed pursuant to s 13(3) of the Act. 2. In any event, the motion ought to be dismissed on the merits because it was nothing more than an attempt to re-argue the application that had been dismissed by the Principal Judgment.
I will deal first with the argument under the Act. The relevant provisions are: "4. Meaning of 'proceedings' In this Act, proceedings includes: (a) any civil proceedings, criminal proceedings or proceedings before a tribunal, and (b) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (c) any proceedings taken in connection with or incidental to proceedings pending before a court or tribunal, and (d) any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and (e) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way. 5. Instituting proceedings (1) In this Act, institute, in relation to proceedings, includes: (a) for civil proceedings--the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and (b) for proceedings before a tribunal--the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal, and (c) for criminal proceedings--the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender, and (d) for civil or criminal proceedings or proceedings before a tribunal--the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings. (2) A reference in this Act to instituting proceedings includes a reference to instituting: (a) proceedings generally, and (b) proceedings in relation to a particular matter, and (c) proceedings against or in relation to a particular person, and (d) proceedings in a particular court or tribunal. … 13. Contravention of vexatious proceedings order prohibiting institution of proceedings (1) If an authorised court makes a vexatious proceedings order prohibiting a person from instituting proceedings: (a) the person may not institute proceedings of the kind to which the order relates without the leave of an appropriate authorised court under section 16, and (b) another person may not, acting in concert with the person, institute proceedings without the leave of an appropriate authorised court under section 16. (2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed until they are dismissed (or taken to be dismissed) under this section. (3) Any proceedings that are stayed by subsection (2) are taken to be dismissed by the court or tribunal in which they were instituted on the expiry of the period of 28 days after the proceedings were first instituted, unless the proceedings are sooner dismissed under subsection (4). (4) Without limiting subsection (2) or (3), the authorised court, or the court or tribunal in which the proceedings are instituted, may make: (a) an order declaring that proceedings are proceedings to which subsections (2) and (3) apply, and (b) an order dismissing the proceedings before the expiry of the period referred to in subsection (3), and (c) any other order in relation to the proceedings that it considers appropriate, including an order for costs. (5) An authorised court, or the court or tribunal in which the proceedings are instituted, may make an order under subsection (4) of its own motion or on the application of a person referred to in section 8 (4). (6) An application may be made by a person referred to in section 8 (4) (e) only with the leave of the authorised court or the court or tribunal in which the proceedings are instituted."
A similar issue was considered in two recent decisions.
First, in Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWSC 408, Lindsay J was considering a motion by Mr Zepinic to the same effect as that which is the subject of these reasons. The motion in the matter before his Honour had not been the subject of leave under the Act, and his Honour accepted that such leave should have been sought. In those circumstances, his Honour made declarations and orders which included: "1. DECLARE that, pursuant to section 13(2) of the Vexatious Proceedings Act 2008 NSW, the Notice of Motion filed by Vitomir Zepinic (also known as Vito Zepinic) on 23 March 2020 has been stayed until it is dismissed (or taken to be dismissed) under section 13 of the Act. 2. ORDER that the Notice of Motion filed on 23 March 2020 be dismissed pursuant to section 13(4)(b) of the Vexatious Proceedings Act 2008."
In Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94, Bell P came to the view that Ms Kostov, who was the subject of orders under the Act, required leave to commence judicial review proceedings in the Court of Appeal arising from a decision of the District Court.
In my respectful opinion, the Zepinic Motion is no different from that considered by Lindsay J in his decision to which I have just referred. I reach that conclusion in three steps by reference to the Act.
The starting point is to ascertain whether the "proceedings" (if they be such) are, for the purposes of s 13(1)(a) of the Act, proceedings "of the kind to which the [vexatious proceedings] order relates". There was no suggestion that the subject matter of the Zepinic Motion was anything other than something to which the orders made by Pembroke J related.
As I have already noted (see paragraph [2] above), those orders are set out in paragraph [4] of the Principal Judgment. It is sufficient to note that one of the matters under the Act about which Mr Zepinic is prohibited from instituting proceedings in New South Wales is proceedings "relating to the [Property], including, but not limited to, the sale of that property completed in or about December 2014". There can be no doubt that the subject matter of the application which was dealt with by the Principal Judgment, and now the Zepinic Motion, relates to that matter, together with other matters the subject of Pembroke J's orders.
The second and third steps are to determine whether the bringing of the Zepinic Motion constitutes the instituting of proceedings for the purposes of s 13(1) of the Act. This requires consideration of the definitions of both "institute" and "proceedings", noting that the definitions of those terms in the Act are inclusive (see paragraph [13] above).
The Zepinic Motion constitutes "proceedings" within the meaning of the inclusive definition of both sections 4(d) and (e) of the Act. It is an interlocutory proceeding or application taken in connection with or incidental to civil proceedings (s 4(d)), and something which calls into question a decision (being the Principal Judgment) of a court by review or in any other way (s 4(e)).
The third step is to determine whether or not Mr Zepinic has "instituted" such proceedings within the meaning of s 13 of the Act. It is clear that the filing of the Zepinic Motion does not fall within the inclusive definition in s 5(1)(a) of the Act, being "for civil proceedings - the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party". However, the important point to note is that the statutory definition is inclusive, and one must fall back on the natural and ordinary meaning of the word "institute", which I take to be "begin" or, given the context of court proceedings, "file". That is what has been done by Mr Zepinic in relation to his motion.
The Court is therefore satisfied that by filing his motion, Mr Zepinic has contravened s 13(1) of the Act by instituting proceedings of the kind to which Pembroke J's orders relate without the leave of this Court under s 16 of the Act. Conformably with the decisions of both Lindsay J and Bell P, it follows that sub-sections 13(2) and (3) apply. By reason of the effluxion of time, the motion having been filed on 7 April 2020, the Court finds that the Zepinic Motion is taken to be dismissed because 28 days have expired since the motion was "first instituted" by being filed.
In opposition to the conclusion which I have just reached, Mr Zepinic raised two arguments: 1. The matters that were the subject of his original application and now the Zepinic Motion were events which occurred before Pembroke J had made his orders under the Act on 25 May 2017; and 2. The matters about which he complained were what Mr Zepinic referred to as "administration of law", in this case being issues concerning the proper service of motions which were the subject of the judgments of Darke J referred to in prayers 3 and 4 of the Zepinic Motion.
The first argument fails because there is nothing in the Act which would so limit its operation. In most, if not all, cases, the matters which are the subject of an order under the Act will have occurred prior to the making of that order. That is certainly the case in these proceedings, even when all one looks at is the restraint on bringing proceedings in relation to the sale of the Property.
The second argument also fails because there is no suggestion in the Act that its operation is so limited. The only relevant question is whether the proceedings that are sought to be brought are proceedings of the kind to which the vexatious proceedings order relates within the meaning of s 13(1) of the Act. If they are such proceedings, then it does not matter whether the events relied on in those proceedings occurred prior to the making of the orders under the Act or afterwards.
It is convenient at this point to record that Mr Healey quite properly, and admittedly perhaps against interest, did put a submission that there was a basis on which the Zepinic Motion would not fall foul of the Act. Mr Healey submitted that when read literally, the motion was subject to the Act. That submission was also put with particular force by Mr Loel as the principal basis on which his client opposed the Zepinic Motion. However, Mr Healey drew to attention the possible argument that if the Act were read in that way, it might have the consequence that every step in a proceeding, including for leave brought by a person subject to the Act, would itself require leave under the Act, creating, as it were, an infinite regression of applications.
With respect, whilst properly drawn to attention, I do not think that argument is correct. The answer to that argument is that the restraint under the Act is against the institution of specified proceedings. Many procedural steps, even those which might strictly be described as interlocutory, could not possibly be described as "instituting proceedings" either within the natural and ordinary meaning of those words or within the inclusive definitions in the Act. For that reason, I do not think it could be said that the Act, on its proper construction, would require that the unremarkable kinds of steps taken in the course of preparing for and making an application under the Act or any other kind of litigation, themselves require leave under the Act.
I next turn to the substantive argument in case I am wrong in my conclusion that the Zepinic Motion has been dismissed by force of the Act.
The principles in relation to an application under UCPR r 36.16 have been conveniently and recently summarised in the judgment of Payne and Brereton JJA in Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72 ("Poulos"), which I respectfully adopt (citations omitted): "7 Uniform Civil Procedure Rules 2005 (NSW) r 36.16 provides for the setting aside of a judgment upon a motion filed before, or within 14 days after, it is entered, or if it is a default judgment or one given in the absence of a party. The judgment of this Court was neither a default judgment nor given in the absence of a party. The present motion, filed on 13 December 2019, was not filed within 14 days after the 4 October judgment was entered (though it was filed within 14 days after judgment in Poulos (No 2) was entered, which itself dismissed a motion filed within 14 days after the 4 October judgment was entered). But assuming that the motion was filed within the relevant 14-day period, that does not of itself entitle the applicant to a re-opening of the matter. The power to re-open on such an application is subject to the significant limitation imposed by the public interest in maintaining the finality of litigation, which requires great caution in its exercise of the power, especially where what is sought would have the practical effect of re-opening the proceedings to enable a significant rehearing. It is to be exercised only where the existing judgment or order is shown to be affected by some relevant irregularity, or by a misapprehension of law or fact, such as a failure to afford a party a proper opportunity to be heard, or that the court had misapprehended a party's evidence or submissions. And while the scope of any re-opening will depend on the nature of the error or misapprehension, generally the power ought not be exercised to permit a general re-opening of the case."
I have already observed (see paragraph [9] above) that Mr Zepinic quite properly accepted that most of his motion sought relief which was dealt with in the Principal Judgment. As is apparent from the observations of the Court of Appeal in Poulos, a desire simply to re-litigate or re-argue something that has been decided is not a sufficient basis to grant relief under UCPR r 36.16. Mr Zepinic has not been able to point to any of the matters referred to by their Honours or, indeed, anything else that would suggest that there was something that could properly found the making of an order to set aside the Principal Judgment. With no disrespect or discourtesy intended to Mr Zepinic, a careful examination of his extensive written submissions and what he has said today in oral argument supports the conclusion, which I draw, that what he is in fact doing by his motion is an attempt to make the same arguments in relation to the same applications that were determined by the Principal Judgment.
Insofar as Mr Zepinic seeks to introduce new matter through prayers 3 and 4 of his motion, I accept Mr Healey's argument that one cannot seek, under the guise of an application under UCPR r 36.16, relief that was not the subject of, or sought in, the original application that was the subject of the Principal Judgment.
In any event, I should record, given Mr Zepinic's propensity to bring these applications, that I cannot see, on the basis of the material which I have been presented with on the present application, how such orders could possibly be made. Nothing in what Mr Zepinic has presented in his submissions or his evidence discloses a basis for the making of such orders in relation to the judgments of Darke J on 13 September 2013 and 11 August 2014. Furthermore, the intervention of third party rights and the passage of time means that there is neither reason nor utility to make such orders. Had Mr Zepinic sought such relief in his original application before me on the basis of the material which he has now presented, it would have suffered the same fate as the application which was in fact the subject of the Principal Judgment.

Mr Malanos' motions

Mr Malanos' motion filed on 27 April 2020 was filed in the same proceedings in which Mr Zepinic had brought his application under the Act. That motion sought: "1. The remuneration of Nicholas Craig Malanos as trustee of the sale of the property (Trustee) located at [the Property] for the period 5 December 2017 to 21 April 2020 be approved in the sum of $62,678.40 (inc GST). 2. The Trustee's legal cost of the Proceedings be paid on an indemnity basis. 3. Pursuant to section 98(4)(c) of the Civil Procedure Act 2005 (NSW) (the Act), the Trustee's legal costs be paid on a gross sum basis in the amount of $295,194.67. 4. Pursuant to s 101(1) and s 101(4) of the Act, an order that the Plaintiff pay interest on any amount paid by the Trustee, or on his behalf, as costs or disbursements or on account of costs and disbursements on the amount of costs and disbursements (Costs) ordered to be paid as a gross sum or, if there is no gross sum order, on the amount agreed or assessed, with interest calculated from the earlier of the date of payment of those Costs or the date of payment on account for those Costs and continuing until such time as payment or recoupment of those Costs and interest has been made, such interest being calculated in accordance with the rates under rule 36.7 of the Uniform Civil Procedure Act 2005 (NSW). 5. The Trustee's legal cost of its Notice of Motion dated 27 April 2020 be fixed in the sum of $25,340.00. 6. Such further or other orders as the Court deems fit."
His motion filed on 30 April 2020 was filed in what might be called the "original proceedings" between Chateau and Mr and Mrs Zepinic. That was, with respect, procedurally correct because the balance of the proceeds of sale of the Property have been paid into Court in those proceedings. That motion sought: "1. Amounts ordered by the Court in favour of Nicholas Craig Malanos (the Trustee) in proceedings number 2017/353311 (the Leave Proceedings) with respect to the Trustee's remuneration and expenses and legal costs and disbursements be paid from the monies held in Court in the Proceedings. 2. Order 1 does not cap or otherwise limit the amount which the Trustee may recover against the Defendants in the event that the funds in Court are insufficient to satisfy the orders for remuneration and expenses and legal costs and disbursements made in the Leave Proceedings. 3. Costs of this motion be paid by the First Defendant. 4. Such further or other orders as the Court deems fit."
I asked Mr Zepinic more than once whether he wished to address the quantum of the amounts sought by Mr Malanos. Mr Zepinic declined. I understood him to confine his opposition to both notices of motion to two submissions, to which I now turn.
First, Mr Zepinic submitted that Mr Malanos could not claim remuneration or costs after 6 September 2016 because Mr Malanos had retired as trustee on 6 September 2016 pursuant to orders made by Pembroke J. With respect to Mr Zepinic, that submission is rejected as being based on a misconception.
On 5 September 2016 (and entered on 6 September 2016) Pembroke J made orders in the original proceedings, which included: "2. Subject to the payment of his costs from the fund constituted by the balance of the sale proceeds in respect of [the Property], order that the trustee pay the net amount of that fund into court. 3. Declare that the trustee is entitled to retire as trustee for the sale of the property."
The fact is - and the Court finds - that Mr Malanos has not retired as trustee for the sale of the Property, although I readily accept his evidence that he very much wishes to do so now. He has continued as trustee while dealing with the years of litigation brought on by Mr Zepinic.
I also accept Mr Healey's submission that even if Mr Malanos had retired as trustee, he would still have been entitled to costs that he had properly incurred relating to the performance of his role as trustee for sale of the Property, including costs that he might incur in defending his conduct as such.
Mr Zepinic's second objection was what he described - without any proper foundation in the evidence, I hasten to add - as Mr Malanos' "criminal conduct" in relation to two trusts which he established consequent upon the sale of the Property. This submission is also rejected as based on a misconception.
I dealt with Mr Zepinic's concern about these trusts in detail at paragraphs [41]-[46] of the Principal Judgment. I will not repeat those paragraphs again in these reasons, but confirm that nothing presented by Mr Zepinic for the purposes of this latest hearing alters my earlier conclusion that there was "nothing untoward or unusual" (Principal Judgment at paragraph [46]) about the trusts of which Mr Zepinic complains.
Mr Zepinic's objections to the relief sought in Mr Malanos' notices of motion are therefore rejected. I should as a matter of formality go on to record the following findings and conclusions.
The various amounts claimed by Mr Malanos for his remuneration have been properly proven to the satisfaction of the Court by Mr Malanos' affidavit evidence.
The amount claimed by him for his remuneration for the period is fair and reasonable.
The amount claimed for legal costs and disbursements, including on the indemnity basis, has been properly proven by the affidavits of Mr Malanos and his solicitor and are fair and reasonable.
Mr Zepinic failed in his application and on his most recent notice of motion. Costs should follow the event. Furthermore, Mr Malanos is entitled to his costs on the indemnity basis in relation to both the application and the Zepinic Motion for two, discrete reasons. First, he should have those costs on that basis (or what used to be referred to as "the trustee basis") because he was involved in the litigation as a trustee and there is no suggestion that any of those costs were incurred unreasonably or in breach of duty (see UCPR Pt 42 rr 42.5 and 42.25).
Alternatively, I accept Mr Healey's submissions that the Court's findings in the Principal Judgment make out the classical grounds for an order for indemnity costs. At paragraph [2] of the Principal Judgment I found: "2. Mr Zepinic applies for leave under the Act to commence proceedings against Mr Malanos in relation to Mr Malanos' conduct as trustee. The relief Mr Zepinic seeks in the proposed proceedings has no reasonable prospects of success. As such, the proposed proceedings are vexatious as an abuse of process under the Act. The Court is therefore required by s 15(1) of the Act to dismiss Mr Zepinic's application."
I also said: "87 It will be apparent from the analysis I have set out above of the various prayers for relief in respect of which Mr Zepinic seeks leave, that the Court is well satisfied that the proceedings which Mr Zepinic proposes are vexatious proceedings and proceedings which have no prima facie ground for the purposes of s 15(1) of the Act. 88 The analysis I have set out above demonstrates my reasons as to why there is no prima facie ground for the proceedings. Insofar as I have concluded the proceedings are vexatious, I am satisfied for the purposes of s 6 of the Act that the proposed proceedings are an abuse of the process of the Court (a matter to which I will return), that given their repetitive particularity they have been instituted to harass or annoy, or to cause delay or detriment to the resolution of the Trustee's appointment, and that the proposed proceedings are intended to be instituted without reasonable ground. 89 Insofar as what may constitute an abuse of process, it is well settled that attempts to re-litigate matters or other otherwise propound multiple claims that have no reasonable prospects of success can constitute an abuse of process. I am satisfied they do in this case. Mr Zepinic's various claims are a melange which attempt to relitigate matters that have been decided adversely to him some years ago, combined with complaints about the Trustee's conduct which he has comprehensively failed to demonstrate have any reasonable basis or prospects of success. The irresistible conclusion is that the proceedings in respect of which Mr Zepinic seeks leave are yet another example of the vexatious conduct which led to the orders made by Pembroke J that I have set out in paragraph [4] above."
I accept Mr Healey's submission that those findings are in themselves sufficient to warrant an order for indemnity costs. I also accept his submission that result is fortified by these findings about Mr Zepinic's claims in the Principal Judgment, being that they: 1. Were an abuse of process (Principal Judgment at paragraph [40]); 2. Were futile (Principal Judgment at paragraph [56]); 3. Were misconceived or a complete misconception (Principal Judgment at paragraphs [42], [58], [59], [62]); 4. Lacked any basis in fact or law or reason (Principal Judgment at paragraphs [47], [57], [65], [67], [79], [80], [82]); 5. Lacked a jurisdictional basis (Principal Judgment at paragraph [73]); 6. Demonstrated no prima facie case (Principal Judgment at paragraphs [55], [63], [72]); and 7. Had no reasonable prospects of success (Principal Judgment at paragraphs [52], [54], [66], [68], [70], [71], [72], [75], [76], [77], [78], [81], [83] and [84]).
I add for completeness that insofar as the Zepinic Motion is concerned, the Court is satisfied that it was equally misconceived and that, properly advised, Mr Zepinic should have understood from the start that it was destined to fail. For this reason, the order for indemnity costs should extend to Mr Malanos' costs of Mr Zepinic's latest notice of motion.
This is also an appropriate case for a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) (the "CPA"). From the history of these proceedings, most notably Mr Zepinic being subject to orders under the Act, it is clear beyond argument that if a gross sum costs order is not made, there will be disputation about the costs assessment. Regrettably, Mr Zepinic seems to be unable to let go of any aspect of the sale of the Property and his dealings with Chateau or Mr Malanos.
Mr Malanos has performed a role as trustee to which he was appointed by the Court. He wishes to retire from that role and also now from his accounting practice. The overriding objective of the just, quick and cheap resolution of these proceedings generally, and of the question of costs in particular, will be met by the Court exercising its discretion to make a gross sum costs order in the amount sought and proven by Mr Malanos.
The Court is also satisfied that there is no discretionary consideration weighing against making an order for interest on costs pursuant to s 101(4) of the CPA. Absent such a consideration, such an order should usually be made and will be in this case: Grace v Grace (No 9) [2014] NSWSC 1239 per Brereton J (as his Honour then was) at [66].
Finally, whether by reason of his trustee's lien over the balance of the sale proceeds or otherwise, it is clear that Mr Malanos is entitled to an order in the original proceedings that to the extent those funds are able to do so, he be paid out of the proceeds currently held in Court in satisfaction of the orders which will be made consequent on these reasons.

At a glance

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Judgment (5 paragraphs)

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