Australian Real Estate Relation Pty Ltd (in liquidation) v Farha Diba (No 2)

[2024] NSWSC 42

Supreme Court

New South Wales

Medium Neutral Citation:

Australian Real Estate Relation Pty Ltd (in liquidation) v Farha Diba (No 2) [2024] NSWSC 42

Hearing dates:

In Chambers – on the papers

Date of orders:

2 February 2024

Decision date:

02 February 2024

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

Amend order 2 pronounced on 21 December 2023 to read:

“The second and third plaintiffs are to pay the costs of the first, second, fourth and sixth defendants”.

Catchwords:

CIVIL PROCEDURE — costs – variation of costs order – Uniform Civil Procedure Rules 2005 (NSW) – costs order against parties in liquidation or otherwise incapable of brining or maintaining legal proceedings – whether the breadth of costs order undermines its benefit – whether costs order should be limited to active parties – facilitation of enforcement of costs order

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) r 36.17

Cases Cited:

Australian Real Estate Relation Pty Ltd (in liquidation) v Farha Diba [2023] NSWSC 1619

Islam v Ratul (District Court (NSW), Andronos SC DCJ, 31 May 2023, unrep)

Ratul v Islam; in the matter of Australian Real Estate Relation Pty Ltd [2023] NSWSC 78

Category:

Costs

Parties:

Australian Real Estate Relation Pty Ltd (First Plaintiff)
Mortgage Plus Australia Pty Ltd (Second Plaintiff)
MD Rajibul Islam (Third Plaintiff)
Trustees of Gulf Bridge Investments Trust (Fourth Plaintiff)
Farha Diba (First Defendant);
Real Estate Macarthur Group Pty Ltd (Second Defendant)
Raine & Horne Corporation (Third Defendant)
Angus Raine (Fourth Defendant)
Andrew Brian (Fifth Defendant)
Celeste Koppe (Sixth Defendant)

Representation:

Counsel:
MD Rajibul Islam (Third Plaintiff) (self-represented)
R Perla (D1 and D2)
SJ Philips (D4 and D6)
No appearance (D3 & D5)

Solicitors:
Mitry Lawyers (D1 and D2)
Russell Kennedy Lawyers (D4 and D6)

File Number(s):

2023/93964

JUDGMENT

1. On 21 December 2023 I gave judgment dismissing the whole of these proceedings against each defendant summarily and ordering the plaintiffs to pay the costs of the first, second, fourth and sixth defendants. I reserved liberty for the parties to apply in respect of any special order as to costs on 3 days’ notice: [2023] NSWSC 1619. By email dated 22 December 2023, the fourth and sixth defendants sought an order under Rule 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) amending my costs order to read as follows:

“The second and third plaintiffs are to pay the costs of the first, second, fourth and sixth defendants.”

2. I do not propose to summarise my principal judgment in the matter, other than to say I accepted the argument of counsel for each of the active defendants that: (1) each of the claims sought to be ventilated on behalf of the plaintiffs was legally untenable; and (2) the proceedings - at least so far as they were brought against the first and second defendants - were an abuse of process as they were in substance the same asserted causes of action that had been rejected in separate proceedings before Black J: Ratul v Islam; in the matter of Australian Real Estate Relation Pty Ltd [2023] NSWSC 78; and before Andronos SC DCJ in the District Court: Islam v Ratul (unreported) 31 May 2023.

3. However, the bases of the fourth and sixth defendants’ application are that: (1) the first named plaintiff is a company in liquidation which was improperly named as a plaintiff because the court appointed liquidator, Mr David Levi, had refused consent to the bringing of the proceeding; and (2) the fourth named plaintiff are styled “Trustees of Gulf Bridge Investments Trust” and are not otherwise identified as a legal entity capable of bringing and maintaining legal proceedings. Implicit in the argument is that the benefit of the order for costs may be undermined by its breadth. As, so the argument goes, the action was effectively brought by and for the benefit of the second plaintiff, Mortgage Plus Australia Pty Ltd, and the third plaintiff, Mr M.D. Rajibul Islam, who controls the second plaintiff, the order for costs ought to be made against them alone.

4. I accept that this amendment would facilitate the enforcement of the costs order in an appropriate way, and I am prepared on that ground to accede to the amendment sought.

5. I record that the first and second defendants have not made a separate application in this matter and that the plaintiffs did not file written submissions in opposition.

6. My order is:

1. Amend order 2 pronounced on 21 December 2023 to read:

2. “The second and third plaintiffs are to pay the costs of the first, second, fourth and sixth defendants”.

**********