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Bahamad v Wong

Bahamad v Wong

Case [2020] NSWSC 991 3 August 2020

Costs

Gross Sum Costs Order

Limitation Periods

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Bahamad v Wong [2020] NSWSC 991
Hearing dates: 21, 22 & 23 October and 18 November 2019
Date of orders: 3 August 2020
Decision date: 03 August 2020
Jurisdiction: Equity
Before: Slattery J
Decision:
Specified lump sum costs order made in the amount of $187,860.63.

Catchwords:
CIVIL PROCEDURE – Costs orders – Gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – plaintiffs claim relief under Conveyancing Act 1919, s 88K for the creation of an easement over the defendants’ properties – proceedings settled after three days of hearing – parties agree that plaintiffs will pay the defendants’ costs of the proceedings up to and including the first day of hearing – dispute about which party will pay the costs of the second and third day of hearing – order made for the making of a gross sum costs order – parties at issue about the appropriate quantum of a gross sum costs order.

Legislation Cited:
Civil Procedure Act 2005, ss 30(4)(a), 56(1), 57(1)(d), 60, 98(4)(c)
Conveyancing Act 1919, ss 88K, 88K(5), Schedule 8, Part 3
Legal Profession Uniform Law 2014.
Supreme Court Act1970
Supreme Court Rules 1970

Cases Cited:
Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd (No. 10) [2017] NSWSC 16
Australasian Performing Rights Assoc Ltd v Marlin [1999] FCA 1006
Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119
Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555
Edgar & Walker v Mead (1916) 23 CLR 29
Hadid v Lenfest Communications Inc [2000] FCA 628
Hamod v State of New South Wales [2011] NSWCA 375
Hancock v Rinehart (Lump Sum Costs) [2015] NSWSC 1640
Harrison v Schipp (2002) 54 NSWLR 738
Kostov v Zhang (No 2) [2016] NSWCA 2790
Lakis v Lardis (No 3) [2018] NSWSC 1296
Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd(No. 12) [2019] NSWSC 916
Makaroff v Nepean Blue Mountains Local Health District (No 2) [2019] NSWSC 1043
Maylord Equity Management Pty Ltd as trustee of theBatterham Retirement Fund v Nauer (No. 3) [2017] NSWSC 1783
Penson v Titan National Pty Ltd (No.3) [2015] NSWCA 121
Royal v El Ali (No. 3) [2016] FCA 1573
Shiv Abi-K Pty Ltd (2004) 87 NSWLR 568
Silva v Czarnikow Limited (1960) 104 SJ 369
Simone Starr-Diamond v Talus Diamond (No. 4) (2013) 272 FLR 414
Smilevska v Smilevska (No. 5) [2019] NSWSC 986
Russo & Ors v Russo & Ors (No. 4) [2016] NSWSC 1133
Willmott v Barber (1881) 17 Ch D 772
Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99

Category: Principal judgment
Parties: First Plaintiff: Noureddine Bahamad
Second Plaintiff: Afaf Bahamad
First Defendant: Carson Wong
Second Defendant: Siobhan Wong
Third Defendant: Mark David Layson
Fourth Defendant: Sally Rae Layson
Representation:
Counsel:
Plaintiffs: G. Farland, M. Keene
Defendants: J.A.C. Potts, A.R. Langshaw
Solicitors:
Plaintiffs:…

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 Bahamad v Wong

Details

AGLC: Bahamad v Wong [2020] NSWSC 991
Case: [2020] NSWSC 991
Decision Date: 03 August 2020

CaseChat Overview and Summary

In the case of Bahamad v Wong, the plaintiffs sought the creation of an easement over the defendants' properties, relying on section 88K of the Conveyancing Act 1919. The dispute between the parties centred on the allocation of costs after the proceedings were settled following three days of hearings. The central issue before the court was the appropriate quantum of a gross sum costs order under section 98(4)(c) of the Civil Procedure Act 2005, as the parties had agreed that the plaintiffs would bear the defendants' costs up to and including the first day of hearing, but disputed who should pay the costs for the second and third days.

The court examined the nature of the proceedings, including the complexity and duration of the hearings, and the necessity of legal representation for both parties. It considered the principle of proportionality in cost awards and the need to ensure that costs orders do not unfairly burden one party. The court determined that the quantum of the gross sum costs order should reflect the additional work and resources expended during the second and third days of the hearing, while also taking into account the overall settlement and the agreement that the plaintiffs would bear the defendants' costs up to the first day.

Ultimately, the court made a gross sum costs order, setting the appropriate quantum based on the factors considered. The order ensured that the costs were fairly allocated between the parties, reflecting the work done during the hearings and the settlement agreement. The court's decision provided clarity and finality to the cost dispute, allowing the parties to move forward without further contention over the financial implications of the proceedings.

Orders