Balout v Bella Ikea Cronulla Pty Ltd (No 2)

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Supreme Court


New South Wales

Medium Neutral Citation: Balout v Bella Ikea Cronulla Pty Ltd (No 2) [2024] NSWSC 1173
Hearing dates: On the papers; last submissions 27 August 2024
Date of orders: 20 September 2024
Decision date: 20 September 2024
Jurisdiction:Equity - Expedition List
Before: Rees J
Decision:

Costs orders made.

Catchwords:

COSTS – proceedings overtaken by subsequent events – no final determination on merits – rule 42.20, Uniform Civil Procedure Rules 2005 (NSW) – complex and protracted proceedings partly resolved interlocutory orders and defendant terminating contracts for sale of land – remaining causes of action premised on contracts proceeding to completion – whether grounds for Court to “order otherwise” – principles at [48]-[54] – plaintiffs have effectively obtained the relief sought – remaining issues became otiose as proceedings developed and by defendant’s actions – plaintiff acted reasonably – defendant acted unreasonably for portion of litigation.

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Uniform Procedure Rules 2005 (NSW), rr 12.1, 42.19, 42.20

Cases Cited:

Australian Receivables Ltd v Tekitu Pty Ltd [2011] NSWSC 1425

Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365

Balout v Bella Ikea Cronulla Pty Ltd [2024] NSWSC 775

Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32

Cummins v Australian Jockey Club Ltd [2009] NSWSC 254

Donald Campbell & Co Ltd v Pollak [1927] AC 732

Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302

Foukkare v Angreb Pty Ltd [2006] NSWCA 335

Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2) [2016] NSWCA 375

Ibrahim v PERI Australia Pty Limited [2013] NSWCA 328

In the matter of Jimmy’s Recipe Pty Limited (No 4) [2020] NSWSC 1244

In the matter of Ming Tian Real Property Pty Ltd [2021] NSWSC 386

Kiama Council v Grant [2006] NSWLEC 96

Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84

One.Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548

Re Minister for Immigration and Ethnic Affairs (Cth); Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Roachev News Group Newspapers [1992] TLR 551

Sydney MarketsCredit Services Co-operative Ltd v Taylor (No 3) [2015] NSWSC 1236

The Metropolitan Asylum District Managers v Hill (1880) 5 AC 582

Transtar Linehaul Pty Ltd v Chief Commissioner of State Revenue (CSR [2021] NSWSC 159

Category:Costs
Parties: Alan Balout (First Plaintiff)
Wisefox Holdings Pty Ltd (Second Plaintiff)
Bella Ikea Cronulla Pty Ltd (First Defendant)
Bella & SEB Holdings (Second Defendant)
Joseph Touma (Third Defendant)
11 Kingston Avenue Pty Ltd (Fifth Defendant)
Representation: Counsel:
P Afshar (First and Second Plaintiffs)
C P O’Neill / A Rizk (First to Third Defendants)
A Byrne (Fifth Defendant)
Solicitors:
Mistry Fallahi (Plaintiffs)
Hicksons Lawyers (First to Third Defendants)
Thurlow Fisher (Fifth Defendant)
File Number(s): 2023/156633

JUDGMENT

  1. HER HONOUR: This judgment concerns what costs orders, if any, should be made where the claim and cross-claim will not be proceeding to final determination, having been largely overtaken by events.

  2. The plaintiffs, Alan…

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Details
Case
[2024] NSWSC 1173
Decision Date

CaseChat Overview and Summary

Balout v Bella Ikea Cronulla Pty Ltd (No 2) was a legal dispute brought before the Supreme Court of New South Wales. The plaintiffs, Balout, were contesting various claims against the defendant, Bella Ikea Cronulla Pty Ltd, which involved the sale of land and the performance of associated contractual obligations. The court was tasked with determining whether the plaintiffs were entitled to costs in light of the proceedings being overtaken by subsequent events, resulting in no final determination on the merits.

The legal issues before the court centred on whether the plaintiffs were entitled to costs under rule 42.20 of the Uniform Civil Procedure Rules 2005 (NSW). The proceedings had been lengthy and complex, involving several interlocutory orders and the termination of contracts for the sale of land by the defendant. Although the remaining causes of action proceeded to completion, the court had to assess whether the plaintiffs had effectively obtained the relief they sought and if the remaining issues had become irrelevant due to the defendant's actions.

The court found that the plaintiffs had achieved the relief they sought through their actions and that the remaining issues had become otiose as the proceedings progressed and due to the defendant's conduct. The court emphasised that the plaintiffs had acted reasonably throughout the litigation, while the defendant had acted unreasonably for a significant portion of the proceedings. Consequently, the court determined that the plaintiffs were entitled to costs, considering the principles set out in the case law referenced.

The final orders of the court were that the plaintiffs were to recover their costs of the proceedings, subject to certain adjustments. This decision was made in light of the plaintiffs achieving the relief they sought, the otiose nature of the remaining issues, and the unreasonable conduct of the defendant during the litigation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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