Accuracy Middle East Advisory Ltd v Debelak - [2024] NSWSC 295

Supreme Court

New South Wales

Medium Neutral Citation: Accuracy Middle East Advisory Ltd v Debelak [2024] NSWSC 295
Hearing dates: On the papers
Date of orders: 22 March 2024
Decision date: 22 March 2024
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
(1) Leave to discontinue the proceedings is granted; and
(2) Accuracy is to bear Ms Debelak’s costs of the proceedings, as agreed or assessed.

Catchwords:
CIVIL PROCEDURE – leave to discontinue proceedings under UCPR r 12.1 – leave granted
COSTS – where proceedings discontinued by the plaintiff – whether plaintiff established basis for departure from ordinary costs order under UCPR r 42.19(2) – whether parties to bear own costs – plaintiff ordered to bear defendant’s costs of the proceedings

Legislation Cited:
Service and Execution of Process Act 1992 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), rr 12.1, 42.19(2)

Cases Cited:
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Deputy Commissioner of Taxation (DCT) v Haddock (2010) 241 FLR 318; [2010] NSWSC 996
Fordyce v Fordham & Anor (2006) 67 NSWLR 497; [2006] NSWCA 274
Nadilo v Eagleton [2021] NSWCA 232
Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW & Anor [2006] NSWCA 129
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Prodromos Anastasi Foukkare v Angreb Pty Limited & Ors [2006] NSWCA 335

Category: Costs
Parties: Accuracy Middle East Advisory Ltd (Plaintiff)
Anabel Debelak (Defendant)
Representation:
Counsel:
S Baron Levi (Plaintiff)
A Di Francesco (Defendant)
Solicitors:
ERA Legal (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s): 2023/236067
Publication restriction: Nil

JUDGMENT

Accuracy Middle East Advisory Ltd brought these proceedings, seeking the recognition and enforcement, at common law, of a 10 January 2023 default judgment which it had obtained in the Dubai International Finance Centre against Ms Debelak. On 13 February 2024, that judgment was set aside and costs were awarded in favour of Ms Debelak.
Accuracy now seeks leave to discontinue these proceedings with an order that each party bear their own costs. Ms Debelak consents to the discontinuance, but on the condition that Accuracy pay her costs of these proceedings on the ordinary basis, under the Uniform Civil Procedure Rules 2005 (NSW).

Issues

In issue between the parties was the appropriate costs order.

The Parties’ Cases

Neither party addressed the possibility that the Court would not grant the leave to discontinue the proceedings under UCPR r 12.1 which Accuracy sought. All their arguments were addressed to the question of costs.

Accuracy

Accuracy relied on affidavits sworn by Mr Barsalou, one of its directors and Mr Blackie, one of its solicitors. It seeks an order under r 42.19(2) that each party bear their own costs in circumstances where the default judgment had been set aside in February 2024 on Ms Debelak’s application, with a costs order in her favour. That had triggered Accuracy’s application for leave to discontinue these proceedings.
It contended that there was no presumption created by r 42.19 that costs will be ordered…

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.

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Details

Case: [2024] NSWSC 295
Decision Date: 22 March 2024

CaseChat Overview and Summary

The case of Accuracy Middle East Advisory Ltd v Debelak involved a dispute over leave to discontinue proceedings and the allocation of costs. The case was heard in the Supreme Court of New South Wales. The plaintiff, Accuracy Middle East Advisory Ltd, sought leave to discontinue the proceedings under rule 12.1 of the Uniform Civil Procedure Rules 2005 (NSW). The defendant, Debelak, opposed the application. The primary legal issue was whether the plaintiff had established a basis for departing from the ordinary costs order under rule 42.19(2) of the Uniform Civil Procedure Rules 2005 (NSW). The court also needed to determine whether the parties should bear their own costs or if the plaintiff should bear the defendant’s costs of the proceedings.

The court considered the factors relevant to granting leave to discontinue proceedings, including the plaintiff's reasons for seeking to discontinue, the stage of the proceedings, and the likelihood of the defendant being prejudiced if leave was granted. The court also examined the circumstances under which the plaintiff might be ordered to pay the defendant's costs. The plaintiff argued that the proceedings were being discontinued because the parties had reached an agreement. However, the defendant contended that the plaintiff had not shown any exceptional circumstances to justify departing from the usual costs order. The court found that the plaintiff had not provided a satisfactory explanation for discontinuing the proceedings and that the defendant would be prejudiced if the application was granted. The court also found that the plaintiff had not established a basis for departing from the ordinary costs order. Therefore, the plaintiff was ordered to bear the defendant's costs of the proceedings.

The court granted the plaintiff leave to discontinue the proceedings but ordered the plaintiff to pay the defendant's costs of the proceedings. The court considered that the plaintiff's reasons for seeking to discontinue were not exceptional enough to warrant a departure from the usual costs order. The court also noted that the defendant would be prejudiced if the application was granted without the plaintiff bearing the defendant's costs. The plaintiff was ordered to pay the defendant's costs of the proceedings, which included the costs of the application to discontinue.

Orders