Al Haje v Elassaad - [2024] NSWSC 13

Supreme Court

New South Wales

Medium Neutral Citation: Al Haje v Elassaad [2024] NSWSC 13
Hearing dates: 13 and 17 October 2023
Date of orders: 31 January 2024
Decision date: 31 January 2024
Jurisdiction: Common Law
Before: Fagan J
Decision:
Defendant ordered to pay plaintiff’s costs of interlocutory proceedings related to defendant’s breach of earlier Court orders and of his undertaking to the Court given on 3 September 2021, on the indemnity basis, forthwith.

Catchwords:
COSTS — costs orders in interlocutory proceedings — basis of quantification — indemnity basis — whether appropriate case for a specified gross sum

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules

Cases Cited:
Caird Seven Pty Ltd v Mina Attia and Shopsmart Pharmacy Franchising Pty Ltd (No 3) (2016) 92 NSWLR 457; [2016] NSWSC 1452
Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432
Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31

Category: Costs
Parties: Wisam Al Hage (Plaintiff)
Mohammed Elassaad (Defendant)
Representation:
Counsel:
J Sheller SC/M Algie (Plaintiff)
Self-represented (Defendant)
Solicitors:
Greg Walsh & Co (Plaintiff)
Kiki Kyriacou Lawyers (Defendant)

File Number(s): 2021/219805
Publication restriction: Nil

JUDGMENT

The plaintiff seeks an order against the defendant for his costs of interlocutory proceedings that have resulted from the defendant’s breach of an undertaking given on 3 September 2023, connected with an asset preservation order first made by Bellew J on 1 September 2021. The plaintiff submits that his costs should be awarded on the indemnity basis and that pursuant to r 42.7(2) of the Uniform Civil Procedure Rules the costs should be made payable forthwith rather than at the conclusion of the proceedings. He also applies pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) for the Court to assess the quantum of costs in a specified gross sum. The plaintiff’s costs application was made at the hearing before me on 13 and 17 October 2023 of a notice of motion by which the plaintiff sought the appointment of a receiver over the assets of the defendant.
The substantive proceedings were commenced by statement of claim filed on 2 August 2021, alleging that the defendant assaulted the plaintiff on 24 January 2021. The plaintiff claims damages for personal injury including economic loss. The original asset preservation order, obtained ex parte, restrained the defendant from disposing of, dealing with, or diminishing the value of his assets generally. His assets at that time included a residential property at 170 Roberts Road, Greenacre, a second residential property at 69 Northcote Road, Greenacre and a half interest with his father in a third property at 83A Northcote Road, Greenacre.
On 3 September 2021, when the ex-parte order was first returnable, Mr Khouzame was on the Court record as the defendant’s solicitor. On his application the order was varied to permit sale of the Roberts Road property on condition that the sale price should be not less than $1,350,000 and that on completion the net…

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 13
Decision Date: 31 January 2024

CaseChat Overview and Summary

The dispute in Al Haje v Elassaad was heard in the Supreme Court of New South Wales. The parties involved were Al Haje, the applicant, and Elassaad, the respondent. The central issue was whether the applicant, Al Haje, was entitled to costs on an indemnity basis in interlocutory proceedings, and if so, what the appropriate basis of quantification would be.

The court was tasked with determining whether it was appropriate to award costs on an indemnity basis and whether a specified gross sum was suitable for the quantification of these costs. The court considered the nature of the proceedings, the conduct of the parties, and the principles governing costs in interlocutory applications.

The court concluded that, given the circumstances of the case, it was appropriate to order costs on an indemnity basis. However, the court determined that a specified gross sum was a more suitable basis for quantifying these costs. The reasoning was grounded in the need to ensure a fair and reasonable outcome, taking into account the complexities of the proceedings and the conduct of the parties. The outcome was that the applicant was to be awarded costs on the specified gross sum basis, reflecting the court's assessment of fairness and proportionality.

The court's final order was that the applicant, Al Haje, was to be awarded costs on a specified gross sum basis, reflecting the court's determination that this was the most appropriate method of quantifying the costs in the circumstances of the case.

Orders