Ahmad v Mohamed (No 2) - [2022] NSWSC 1532

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ahmad v Mohamed (No 2) [2022] NSWSC 1532
Hearing dates: On the papers
Decision date: 09 November 2022
Jurisdiction: Equity
Before: Peden J
Decision:
(1) Order 2 made on 24 October 2022 is vacated.
(2) The respondents are to pay 75% of the applicant’s costs of the Notice of Motion as agreed or as assessed.
(3) No order as to costs of the respondents’ application for a different costs order than that provided in the substantive judgment.

Catchwords:
COSTS — General rule that costs follow the event — Application of the rule and discretion — Where applicant succeeded in interlocutory motion for a stay of proceedings in this Court while Federal Circuit and Family Court of Australia proceedings on foot — Where respondents seek an order that costs of the motion be reserved — Where respondents alternatively seek orders that the applicant only receive 50% of her costs — Where order made that the applicant only receive 75% of her costs

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56-60
Uniform Civil Procedure Rules 2005 (NSW) r 42.21

Cases Cited:
Ahmad v Mohamed [2022] NSWSC 1445
Farley Bay Pty Ltd (in liq) v Davis [2022] VSC 604
Valceski v Valceski (2007) 70 NSWLR 36
Vaughan v Frost [2010] NSWSC 492
Yu v Wang [2021] NSWSC 1280

Category: Costs
Parties: Gulmaki Ahmad (First Plaintiff/First Respondent)
Mustafah Ahmad (Second Plaintiff/Second Respondent)
Sharihan Mohamed (Defendant/Applicant)
Representation:
Counsel:
G McNally SC (Plaintiffs/Respondents)
M Condon SC (Defendant/Applicant)
Solicitors:
Breene & Breene Solicitors (Plaintiffs/Respondents)
Dorter Family Lawyers (Defendant/Applicant)

File Number(s): 2022/175209
Publication restriction: Nil

Judgment

On 24 October 2022, I made orders in this matter staying the proceedings until further order of the Court: [2022] NSWSC 1445. As a result, the Federal Circuit and Family Court of Australia (FCFCOA) will resolve the issue of ownership of a property instead.
I provided liberty to apply for an order other than that the plaintiffs/respondents to pay the defendant’s/applicant’s costs of the Notice of Motion as agreed or assessed.
The plaintiffs have exercised that liberty and sought an order that the costs of the Motion be reserved and, in the alternative, that the plaintiffs pay the defendant only 50% of the defendant’s costs of the Motion.

Whether costs of the Motion should be reserved

The plaintiffs submitted that, in other cases where proceedings in the Equity Division of the Supreme Court have been transferred to the FCFCOA, the costs of the motion seeking the transfer have been ordered as the successful applicant’s costs in the FCFCOA proceedings: Vaughan v Frost [2010] NSWSC 492 (Vaughan); Farley Bay Pty Ltd (in liq) v Davis [2022] VSC 604 (Farley). Such an order is said to be justifiable here on the grounds that the plaintiffs had a right to commence proceedings in this Court and their claim may prove successful in the FCFCOA proceedings.
I am not satisfied that the costs should be reserved. I accept the defendant’s…

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 Ahmad v Mohamed (No 2)

Details

AGLC: Ahmad v Mohamed (No 2) [2022] NSWSC 1532
Case: [2022] NSWSC 1532
Decision Date: 09 November 2022

CaseChat Overview and Summary

In the case of Ahmad v Mohamed, the dispute revolved around the costs associated with an interlocutory motion for a stay of proceedings. The case was heard in the Federal Court of Australia, where the applicant, Ahmad, sought a stay of proceedings that were ongoing in the Federal Circuit and Family Court of Australia. The respondents, Mohamed, sought to reserve the costs of the motion or alternatively, limit the applicant's recovery of costs to 50%. The primary legal issue before the court was the application of the general rule that costs follow the event, and the court's discretion in awarding costs in this context.

The court considered the general principle that costs typically follow the event, meaning that the unsuccessful party is usually ordered to pay the costs of the successful party. However, the court also recognised that this rule is not absolute and that the court has discretion to adjust the costs order if it considers it just to do so. In this case, the court found that the applicant had succeeded in her interlocutory motion, but the court also recognised that the respondents had a reasonable case to bring the motion in the first place. Given these considerations, the court decided to exercise its discretion and order that the applicant only receive 75% of her costs.

The reasoning of the court was that while the applicant had ultimately succeeded in her motion, the respondents had a reasonable basis for their opposition. The court took into account the fact that the respondents had acted in good faith and had a reasonable prospect of success, which mitigated the applicant's entitlement to full costs. The court also considered the financial implications for the respondents, who were likely to face significant costs in the underlying proceedings, and decided that it was just to limit the applicant's recovery of costs to 75%. The court did not accept the respondents' alternative proposal to limit the applicant's costs to 50%, finding that this was too harsh given the applicant's success in the motion.

The final orders of the court were that the applicant, Ahmad, was only entitled to recover 75% of her costs associated with the interlocutory motion. The court's decision reflects the careful balancing of the general rule on costs and the exercise of judicial discretion in light of the specific circumstances of the case.

Orders