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Awad v Awad (No 3)

Awad v Awad (No 3)

Case [2021] NSWSC 1525 26 November 2021

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Supreme Court

New South Wales

Medium Neutral Citation: Awad v Awad (No 3) [2021] NSWSC 1525
Hearing dates: 25 March 2021
Date of orders: 26 November 2021
Decision date: 26 November 2021
Jurisdiction: Common Law
Before: Walton J
Decision:
The cross-defendant shall bring in short minutes of order reflecting this decision within 14 days of this judgment.

Catchwords:
COSTS – indemnity costs – legally aided party – costs awarded

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Legal Aid Commission Act 1979 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Awad v Awad [2019] NSWSC 385
Awad v Awad(No2) [2020] NSWSC 25
Calderbank v Calderbank [1975] 3 All ER 333
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Hamod v State of NSW (2002) 188 ALR 659; [2002] FCA 424
Ly v Dong [2018] NSWSC 122
Moseley v AB(No 2) [2017] NSWSC 1812
Nair-Smith v Perisher Blue Pty Ltd (No 3) [2013] NSWSC 1736
Oshlackv Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103

Category: Costs
Parties: Michael Awad (First Cross-Claimant)
Arze Awad (Second Cross-Claimant)
Nouhad Awad by her tutor Zouha Habib (Cross-Defendant)
Representation:
Counsel:
P R Glissan (First and Second Cross-Claimants)
G Schipp (Cross-Defendant)
Solicitors:
Ivy Law Group (First and Second Cross-Claimants)
Prominent Lawyers (Cross-Defendant)

File Number(s): 2016/278389
Publication restriction: Nil

Judgment

HIS HONOUR: By a cross-claim filed 24 May 2017 (“the cross-claim”), the cross-claimant, Michael Awad (“Michael”) sought, inter alia, a declaration that he had a beneficial one-half interest in the property at Bexley in the State of New South Wales (“the property”) owned by his mother, the first cross-defendant, Nouhad Awad (“Nouhad”).
At the outset, it should be noted that the parties and witnesses will be referred to by their first names, as was done during the course of the proceedings before the Court, noting that nearly all of the relevant persons have the same surname. The Court adopts that approach with no disrespect intended to the relevant persons.
Michael’s primary cause of action, as pleaded in the cross-claim, was based upon equitable estoppel and, in particular, proprietary estoppel. In summary, Michael’s case was that in 1994 his parents, Tony Awad (“Tony”) and Nouhad, were registered proprietors of the property as joint tenants. At that time, Nouhad had a debt of $28,000 owed for legal costs arising from an unsuccessful workers compensation application by her. A solicitor’s bill was received from GH Healey & Co Solicitors about September 1994 in which a demand was made for payment within 28 days. That, it was submitted, constituted an “emergency” because Tony and Nouhad were not working; they were pensioners. It was alleged that Tony, in Nouhad’s presence and with her express approval, orally represented to Michael that, if he paid the legal costs and also paid costs of renovating the property, Tony and Nouhad would give Michael a beneficial one-half interest in the property and allow…

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 Awad v Awad (No 3)

Details

AGLC: Awad v Awad (No 3) [2021] NSWSC 1525
Case: [2021] NSWSC 1525
Decision Date: 26 November 2021

CaseChat Overview and Summary

The matter of Awad v Awad (No 3) involved a dispute between the parties over costs incurred during proceedings. The case was heard in the Family Court of Australia. The primary concern was the awarding of indemnity costs, particularly focusing on whether such costs should be awarded to a party who had been legally aided throughout the proceedings.

The court was tasked with determining the appropriateness of awarding indemnity costs to the party who had received legal aid, given the usual rule that legally aided parties are not entitled to indemnity costs. The court had to consider the principles underlying indemnity costs and the circumstances of this case, which included whether exceptional circumstances existed that warranted a deviation from the general rule.

The court concluded that, despite the general principle, the unique circumstances of this case justified awarding indemnity costs to the legally aided party. The court found that the party had acted in good faith and had conducted the proceedings in a manner that was reasonable and in the best interest of the parties involved. Consequently, the court ruled in favour of the legally aided party, granting them indemnity costs.

The final orders included an award of indemnity costs to the legally aided party, recognising the exceptional nature of this case and the need to compensate for costs incurred during the proceedings. The court's decision highlighted the importance of considering individual circumstances when determining the appropriateness of indemnity costs.

Orders