Assure (NSW) Pty Limited v Taouk - [2016] NSWSC 1234

Supreme Court

New South Wales

Medium Neutral Citation: Assure (NSW) Pty Limited v Taouk [2016] NSWSC 1234
Hearing dates: 2 September 2016
Date of orders: 02 September 2016
Decision date: 05 September 2016
Jurisdiction: Equity
Before: Darke J
Decision:
Order that the defendant pay the plaintiff’s costs of the proceedings on the ordinary basis.

Catchwords: COSTS – proceedings for removal of caveat – consent order made for removal of caveat – agreement as to interim regime for proceeds of sale of property – interim regime not continued – offer of settlement not accepted by defendant – what is appropriate order for costs in the circumstances
Category: Costs
Parties: Assure (NSW) Pty Limited (Plaintiff)
Joseph Taouk (Defendant)
Representation:
Counsel:
Mr P Reynolds (Plaintiff)
Mr F F F Salama (Defendant)
Solicitors:
BC Lawyers (Plaintiff)
Yazbeck Law (Defendant)

File Number(s): 2016/205720
Publication restriction: None

Judgment

These proceedings for the removal of a caveat were commenced on 7 July 2016. Orders for short service were made, and on 8 July 2016 the matter was set down for hearing in the Duty List on 13 July 2016.
On that day, orders were made by consent which provided for the withdrawal of the caveat, the filing of a cross-claim by 8 August 2016, and that costs be costs in the cause. The Court also noted that upon the defendant giving the usual undertaking as to damages and agreeing to provide an affidavit within 14 days demonstrating an ability to support the undertaking, the plaintiff without admission agreed to an interim regime whereby until 12 August 2016 the proceeds of sale of the property the subject of the caveat would only be paid for certain purposes.
On 12 August 2016 the Court was informed that no cross-claim was to be filed, and that if any claim was to be pursued by the defendant it would be by way of separate proceedings. The Court was further informed that the defendant had not provided an affidavit in accordance with the direction made on 13 July 2016. In those circumstances, the Court declined the defendant’s application for an order continuing the interim regime.
The only remaining issue was costs. A direction was made for the provision of written submissions and the matter was stood over to 2 September 2016.
Written submissions were duly provided. The plaintiff sought an order that the defendant pay its costs of the proceedings on the indemnity basis. The defendant submitted that the appropriate order was an order that each party bear its own costs.
I heard further submissions from the parties on 2 September 2016. The matter did not conclude until about 4:15pm. The Court indicated that it would order that the defendant pay the plaintiff’s costs of the proceedings on the ordinary basis, and provide brief written reasons as soon as practicable. These are those reasons.
The plaintiff raised numerous matters relevant to the exercise of the discretion in relation to costs. In essence, these were:

the plaintiff succeeded in having the caveat removed,…

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: [2016] NSWSC 1234
Decision Date: 05 September 2016

CaseChat Overview and Summary

The case of Assure (NSW) Pty Limited v Taouk involved a dispute between the plaintiff, Assure (NSW) Pty Limited, and the defendant, Taouk. The plaintiff sought to have a caveat against the sale of a property removed and for an interim regime for the proceeds of the sale. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was to determine the appropriate order for costs in the circumstances of the case, where a consent order had been made for the removal of a caveat, an agreement for an interim regime for the proceeds of the sale had been reached, but the interim regime was not continued, and an offer of settlement by the plaintiff was not accepted by the defendant.

In examining the matter, the court considered the conduct of both parties and the principles of costs in equity. It was noted that the defendant had initially agreed to the interim regime for the proceeds of the sale, but later chose not to continue with it. The court held that the defendant's decision to not proceed with the agreed interim regime and the subsequent rejection of the plaintiff's offer of settlement were significant factors in determining the appropriate costs order. The court emphasised the importance of parties adhering to agreed terms and the consequences of rejecting reasonable settlement offers. Based on these considerations, the court ruled that the plaintiff was entitled to costs on an indemnity basis for the proceedings up to the point of the defendant's rejection of the settlement offer. This decision reflected the court's view that the defendant's conduct had unnecessarily prolonged the litigation.

Orders