Legal Research
Cases
AB Developments (Australia) Pty Ltd v El-Sayed (No 2)

AB Developments (Australia) Pty Ltd v El-Sayed (No 2)

Case [2017] NSWSC 1530 13 November 2017

Costs

Abuse of Process

Admissibility of Evidence

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: AB Developments (Australia) Pty Ltd v El-Sayed (No 2) [2017] NSWSC 1530
Hearing dates: 25 May 2017 and 7 September 2017
Date of orders: 13 November 2017
Decision date: 13 November 2017
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
The Court orders that:

(1)   AB Developments (Australia) Pty Ltd pay the defendant’s costs of the proceedings, including the costs of the defendant’s amended notice of motion filed 13 April 2017, but excluding the costs of the second plaintiff’s claim, on an indemnity basis;

(2)   Rhonda Georges pay the defendant’s costs of the proceedings, including the costs of the defendant’s amended notice of motion filed 13 April 2017, but excluding the costs of the second plaintiff’s claim, on an indemnity basis; and
(3)   The Amended Notice of Motion filed 13 April 2017 is otherwise dismissed.
Catchwords: COSTS – application for indemnity costs order and non – party costs order following abandonment of action – principal claim was that defendant executed deed of loan, guarantee and mortgage – defendant contended that his signature was forged – non-party is sole director and shareholder of plaintiff – described herself as “professional director” – Court does not decide case that was abandoned – contended that non-party swore false affidavit as to date when documents executed – finding made – non-party conducted litigation having sworn false affidavit – indemnity costs and non-party costs order made
Legislation Cited: Evidence Act 1995, s 140
Uniform Civil Procedure Rules 2005, r 4.2
Cases Cited: AB Developments (Australia) Pty Ltd v El-Sayed [2016] NSWSC 1613
Blazai Pty Ltd v Maclarens (No 2) [2013] NSWSC 31
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340
Harrison v Schipp; Cameron v Schipp [2001] NSWCA 13
Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34
Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28
Re The Minister for Immigration and Ethnic Affairs of the Cth of Australia; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Rosie Ianelli v John Leslie Hancock t/as Hancocks Solicitors [2012] NSWSC 417
Category: Costs
Parties: AB Developments (Australia) Pty Ltd (First Plaintiff)
Abdul Hamdan (Second Plaintiff)
Ahmed El-Sayed (Defendant)
Representation:
Counsel:
A Duc (First Plaintiff and Ms Rhonda Georges)
P Barham (Defendant)
Solicitors:
Edgeworth Legal Pty Ltd (Plaintiffs)
Smith Leonard Fahey Lawyers (Defendant)

File Number(s): 2014/312841

Judgment

The subject of this judgment is an amended notice of motion filed 13 April 2017 on behalf of the defendant, Ahmed El-Sayed. The motion has had a difficult history.
On 17 November 2016 I entered judgment in favour of Mr El-Sayed against the first plaintiff, AB Developments (Australia) Pty Ltd (“AB”), and the second plaintiff, Abdul Hamdan: AB Developments (Australia) Pty Ltd v El-Sayed [2016] NSWSC 1613 (“AB v El-Sayed”).
In AB v El-Sayed at [1] I noted that AB did not press the principal cause of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB Developments (Australia) Pty Ltd v El-Sayed (No 2)

Details

AGLC: AB Developments (Australia) Pty Ltd v El-Sayed (No 2) [2017] NSWSC 1530
Case: [2017] NSWSC 1530
Decision Date: 13 November 2017

CaseChat Overview and Summary

AB Developments (Australia) Pty Ltd brought an action against Mr El-Sayed, alleging that he executed a deed of loan, guarantee and mortgage. The defendant contended that his signature was forged. The plaintiff also applied for an order for non-party costs against Ms O’Farrell, the sole director and shareholder of the plaintiff, who described herself as a “professional director”. The plaintiff alleged that Ms O’Farrell swore a false affidavit as to the date when the documents were executed. The matter was ultimately abandoned by the plaintiff. The court had to decide whether to make an indemnity costs order against the plaintiff and a non-party costs order against Ms O’Farrell.

The court found that the defendant was entitled to an indemnity costs order against the plaintiff, as the principal claim had been abandoned. It was also established that Ms O’Farrell had sworn a false affidavit and conducted the litigation in a way that warranted the making of a non-party costs order against her. The court found that the plaintiff had failed to make a genuine effort to establish the forgery of the defendant’s signature and had failed to make any real attempt to establish that the deed was executed on the date stated in the affidavit. The court held that the plaintiff’s decision to abandon the case was not a reasonable one, and that the non-party had conducted the litigation in a way that warranted the making of a non-party costs order against her.

The court held that the plaintiff’s case was not decided on its merits, and that the non-party had conducted the litigation in a way that warranted the making of a non-party costs order against her. The court ordered that the plaintiff pay the defendant’s costs on an indemnity basis and that Ms O’Farrell pay the defendant’s costs on an indemnity basis. The court found that the plaintiff’s case was not decided on its merits, and that the non-party had conducted the litigation in a way that warranted the making of a non-party costs order against her. The court ordered that the plaintiff pay the defendant’s costs on an indemnity basis and that Ms O’Farrell pay the defendant’s costs on an indemnity basis.

Orders