Benjamin and Khoury Pty Ltd v Gabriel Rahme (No 2)

[2022] NSWSC 279

Supreme Court

New South Wales

Medium Neutral Citation:

Benjamin & Khoury Pty Ltd v Gabriel Rahme (No 2) [2022] NSWSC 279

Hearing dates:

24 August 2021

Date of orders:

16 March 2022

Decision date:

16 March 2022

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders:

(1) I vacate my order (2) made on 13 October 2021.

(2) The first and second defendants are to pay the plaintiff's costs of the application on the ordinary basis until 5 August 2021.

(3) The first defendant is to pay the plaintiff’s costs of the application on the ordinary basis after 5 August 2021.

Catchwords:

COSTS – No point of principle

Category:

Costs

Parties:

Benjamin & Khoury Pty Ltd (Plaintiff)
Gabriel Rahme (First Defendant)
Dana Rahme (Second Defendant)

Representation:

Counsel:
P Afshar (Plaintiff)
C Bevan (First Defendant)

Solicitors:
Daniel Jude Lawyers (Plaintiff)
Solon Lawyers (Defendants)

File Number(s):

2014/262387

Publication restriction:

Nil

Judgment

1. HER HONOUR: This is a short Judgment in relation to costs. I refer and rely upon my earlier Judgment in Benjamin & Khoury Pty Ltd v Gabriel Rahme [2021] NSWSC 1302 dated 13 October 2021.

2. On 13 October 2021, I made the following orders:

1. The first defendant’s amended notice of motion filed 5 August 2021 is dismissed.

2. The first defendant is to pay the plaintiff’s costs on an ordinary basis, if the plaintiff does not seek an alternative order from the Court within 7 days. If the plaintiff does seek an alternative order I will give directions for the filing of written submissions.

3. On 20 October 2021, the plaintiff submitted submissions regarding proposed alternate costs orders. The plaintiff filed its submissions on costs within 7 days. Due to an oversight these submissions have just come to my attention. The first defendant did not make submissions in response.

The plaintiff’s submissions

4. On 13 October 2021, Harrison AsJ dismissed an amended notice of motion filed on 5 August 2021 and which had been included in the Court Book with the leave granted by Cavanagh J on 12 August 2021. That amended process had been substituted for a Notice of Motion filed by and for both defendants on 9 September 2020 (“the application”). In that application, both defendants were named as applicants and both sought an order to set aside a judgment on 5 September 2014.

5. On 12 August 2021, Cavanagh J reserved the question of costs thrown away by reason of the amendment of the application. Order (2) of the orders made by her Honour on 13 October 2021 invited the plaintiff to indicate its position in relation to costs. The plaintiff does not seek a special costs order against the first defendant, but seeks the following costs orders instead of the proposed order (2):

2. Order that the first and second defendants pay the plaintiff's costs of the application on the ordinary basis until 5 August 2021.

3. Order that the first defendant pays the plaintiff’s costs of the application on the ordinary basis after 5 August 2021.

6. The plaintiff submitted that for the following reasons, the Court would make the orders set out above.

7. First, by the filing of the amended notice of motion, the second defendant in effect discontinued her application against the plaintiff. The usual order upon discontinuance is that the party discontinuing pays the costs of the other party unless the parties agree or the Court orders otherwise. It is unlikely that the second defendant would be able to lead any evidence or mount any challenge to the usual costs order consequent upon discontinuance.

8. Second, the application as made by the second defendant was entirely misconceived and wasteful given the findings of the Court of appeal, to which her Honour referred at [26] of her Honour’s judgment. Accordingly, the costs of and pertaining to the application insofar as it concerned the second defendant were entirely wasted.

Resolution

9. In relation to the costs that were reserved by Cavanagh J on 12 August 2021, the defendants should pay the costs thrown away by filing of the amended notice of motion filed 5 August 2021. It was amended so that the only defendant was the first defendant Mr Gabriel Rahme. The second defendant Dana Rahme was no longer a defendant. In these circumstances the appropriate orders are:

1. An order that the first and second defendants pay the plaintiff's costs of the application on the ordinary basis until 5 August 2021; and

2. An order that the first defendant pays the plaintiff’s costs of the application on the ordinary basis after 5 August 2021.

The Court orders:

1. I vacate my order (2) made on 13 October 2021.

2. The first and second defendants are to pay the plaintiff's costs of the application on the ordinary basis until 5 August 2021.

3. The first defendant is to pay the plaintiff’s costs of the application on the ordinary basis after 5 August 2021.

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Decision last updated: 16 March 2022