Bachour Enterprises Pty Ltd v Munzer (No 2) - [2025] NSWSC 30

Supreme Court

New South Wales

Case Name:	Bachour Enterprises Pty Ltd v Munzer (No 2) (costs)
Medium Neutral Citation:	[2025] NSWSC 30
Hearing Date(s):	On the papers; last submissions 20 December 2024
Date of Orders:	13 February 2025
Decision Date:	13 February 2025
Jurisdiction:	Equity - Expedition List
Before:	Rees J
Decision:	Costs orders made.
Catchwords:	RELEASE OF FUNDS HELD IN INTERLOCUTORY REGIME – dispute about sale of business – purchase price held in trust account under interim orders – contract binding – whether trust monies should be released to vendor. COSTS – defendant failed to comply with discovery obligations – whether “delinquency” – principles at [31] – Calderbank offers – principles at [33]-[34] – whether plaintiff achieved better outcome – too early to say – revisit after damages or account of profits determined.
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 98(4) Uniform Civil Procedure Rules 2005 (NSW) r 42.1, 42.5
Cases Cited:	Berkeley Administration Inc v McClelland [1990] FSR 565 Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131 CGU Insurance Ltd v Corrections Corp of Australia Staff Superannuation Ltd [2008] FCAFC 173 Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 Gate v Sun Alliance Insurance Ltd (1995) 8 ANZ Ins Cas 61-251 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 7) [2008] NSWSC 199; (2008) 65 ACSR 324 Ivory v Telstra Corporation Ltd [2001] QSC 102 Mead v Watson [2005] NSWCA 133 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Radovanovic v Stekovic [2024] NSWCA 129 Vance v Vance (1981) 128 DLR (3d) 109
Category:	Costs
Parties:	Bachour Enterprises Pty Ltd (Plaintiff) Simon Munzer (First Defendant) Paradise CC Corp Pty Ltd (Second Defendant)
Representation:	Counsel: A Byrne (Plaintiff) DC Eardley (Defendants) Solicitors: Cordoba Legal (Plaintiff) Orison Law Group (Defendants)
File Number(s):	2022/355581

JUDGMENT

HER HONOUR: This judgment concerns costs and the release of funds held in the trust account of the defendants’ solicitor under an interlocutory regime.

FACTS

In August 2022, the defendants agreed to sell a ‘charcoal chicken’ business in Mt Druitt to the plaintiff. The plaintiff paid for the shop and stock and began to operate the business. In September 2022, the parties signed a Heads of Agreement in respect of the sale, while more detailed transaction documents were being prepared. In October 2022, however, the first defendant, Simon Munzer, changed his mind and re-took possession of the shop to the exclusion of the plaintiff.
In November 2022, these proceedings were commenced. On 9 December 2022, Parker J made orders to expedite the proceedings and tentatively listed the matter for hearing in February 2023. His Honour also made orders for an interim regime:
1. By 16 December 2022, the defendants will transfer the sum of $116,282.82 (Held Funds) into the trust account (Trust Account) of their solicitors, Orison Law Group.
2. The defendants shall instruct and cause Orison Law Group to hold the Held Funds in the Trust Account until further order…

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: [2025] NSWSC 30
Decision Date: 13 February 2025

CaseChat Overview and Summary

The case of Bachour Enterprises Pty Ltd v Munzer (No 2) involved a dispute between the plaintiff, Bachour Enterprises Pty Ltd, and the defendant, Munzer, concerning the sale of a business. The sale of the business had resulted in a purchase price being held in a trust account under interim orders. The primary issue before the court was whether the trust monies should be released to the vendor, Munzer. A secondary issue related to costs, specifically whether the defendant's failure to comply with discovery obligations constituted "delinquency" and whether the plaintiff had achieved a better outcome through Calderbank offers.

The court examined the binding nature of the contract and the circumstances surrounding the release of the trust monies. It considered whether the terms of the contract and the conduct of the parties warranted the release of the trust monies to Munzer. Additionally, the court addressed the defendant's non-compliance with discovery obligations, assessing whether this amounted to "delinquency" and the impact on the costs awarded. The court also evaluated the Calderbank offers made by the plaintiff, determining whether these offers led to a better outcome for the plaintiff. The court found that it was too early to determine if the plaintiff had achieved a better outcome, suggesting that the issue of costs would be revisited after damages or account of profits were determined.

In conclusion, the court did not release the trust monies to the defendant at the time of the hearing but left the matter open for reconsideration once the damages or account of profits were established. The costs issue was similarly deferred, with the court indicating that the matter would be revisited post-determination of damages or account of profits. This decision ensures that all relevant factors are considered before a final ruling on the release of funds and associated costs is made.

Orders