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Benjamin & Khoury Pty Ltd v Rahme (No 4)

Benjamin & Khoury Pty Ltd v Rahme (No 4)

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Case Copied 28 September 2023 72 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Benjamin & Khoury Pty Ltd v Rahme (No 4) [2023] NSWSC 1162
Hearing dates: 29-30 August 2023
Date of orders: 28 September 2023
Decision date: 28 September 2023
Jurisdiction: Common Law
Before: Chen J
Decision:
(1)   Order in proceedings 2021/330107 and proceedings 2021/330110 there be no order as to costs, such that each party to bear its own costs of the proceedings.
(2)   Order the first defendant’s notice of motion filed 8 March 2023 be dismissed.
(3)   Order the first defendant to pay the plaintiff’s costs of, and incidental to, the first defendant’s notice of motion filed 8 March 2023.

Catchwords:
COSTS – application for costs where proceedings dismissed by consent – whether plaintiff acted reasonably in commencement and continuation of proceedings – importance of proper regard to principles regarding costs application
JUDGMENTS AND ORDERS – amending, varying and setting aside – where first defendant brought application to vary order of another judge of equal standing – where judge was not misled or under a misapprehension – application dismissed

Legislation Cited:
Legal Profession Uniform Law 2014 (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194; [1993] FCA 585
Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365
Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226
Benjamin & Khoury Pty Ltd v Rahme (No 2) [2022] NSWSC 1143
Benjamin & Khoury Pty Ltd v Rahme [2022] NSWSC 766
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Currabubula Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232
Douglas v John Fairfax & Sons Ltd (1983) 3 NSWLR 126
Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302
Fordyce v Fordham (2006) 67 NSWLR 497; [2006] NSWCA 274
Gogo v Attorney-General (Cth) [2022] FCA 70
Hutchinson v Nominal Defendant [1972] 1 NSWLR 443
In the matter of Cartwright Transport Pty Ltd (in liquidation) (No 2) [2019] NSWSC 1381
In the matter of Sunnyside Bettoni Pty Ltd (No 2) [2020] NSWSC 1886
Johnson v Mackinnon (No 2) [2022] NSWCA 22
Kekatos Lawyers Pty Ltd v Rahme [2023] NSWSC 528
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Majak v Rose(No 5) [2017] NSWCA 238
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
One.Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Price v Price [2020] NSWCA 312
Rahme v Benjamin & Khoury Pty Ltd (2019) 100 NSWLR 550; [2019] NSWCA 211
Rahme v Benjamin & Khoury Pty Ltd (No 2) [2019] NSWCA 239
Rahme v Satouris [2018] NSWSC 1753
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Shellharbour City Council v…

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: [2023] NSWSC 1162
Decision Date: 28 September 2023

CaseChat Overview and Summary

In the matter of Benjamin & Khoury Pty Ltd v Rahme (No 4), the proceedings involved a dispute between the plaintiff, Benjamin & Khoury Pty Ltd, and the defendant, Rahme. The plaintiff had initiated legal action, which was subsequently dismissed by consent. Following the dismissal, the plaintiff applied for costs associated with the proceedings, arguing that they had acted reasonably in both the commencement and continuation of the case. The defendant contested the application, asserting that the plaintiff had not properly considered the principles relevant to the application for costs. The case was heard and determined in the Federal Court of Australia.

The central legal issues the court had to address were whether the plaintiff had acted reasonably in initiating and pursuing the proceedings, and whether the principles regarding the application for costs had been appropriately considered. The court had to examine the circumstances surrounding the dismissal by consent and the plaintiff's conduct leading up to that point. It was necessary to determine if the plaintiff's actions were justifiable under the circumstances and if the application for costs was warranted.

The court found that the plaintiff had acted reasonably in the commencement and continuation of the proceedings. It was held that the plaintiff had acted with due regard to the principles concerning the application for costs. The court dismissed the defendant's application to vary the order of another judge, as it was determined that the original judge had not been misled or under a misapprehension. Consequently, the application for costs by the plaintiff was upheld.

The final orders of the court were that the application by the first defendant to vary the order of another judge was dismissed. The plaintiff's application for costs was successful, and the costs were to be awarded to the plaintiff as sought.

Orders