Carter v Mehmet (No 2) - [2021] NSWCA 333

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Carter v Mehmet (No 2) [2021] NSWCA 333
Hearing dates: On the papers
Date of orders: 17 December 2021
Decision date: 17 December 2021
Before: Meagher JA at [1];
Gleeson JA at [1];
Payne JA at [1]
Decision:
(1) The sum of $40,000 paid into Court by the appellants on 29 July 2021 be released to the appellants forthwith;
(2) The respondents pay the costs of the appellants of the motion seeking return of the sum paid into Court as security for costs.

Catchwords:
COSTS — security for costs — where appellants provided security for respondents’ costs of the appeal — where appeal allowed — order for release of sum paid as security

Cases Cited:
Carter v Mehmet [2021] NSWCA 286
Murray John Carter v Ian Mehmet t/as ATF Ian G Mehmet Testamentary Trust [2021] NSWCA 32

Texts Cited:
GE Dal Pont, Law of Costs (5th ed, 2021, LexisNexis)

Category: Consequential orders
Parties: Murray John Carter (First Appellant)
The Wheel Resort Pty Ltd (Second Appellant)
Cathscompany Pty Ltd (Third Appellant)
Ian Mehmet t/as ATF Ian G Mehmet Testamentary Trust (First Respondent)
Cameron Mehmet t/as ATF Cameron Mehmet Testamentary Trust (Second Respondent)
Errol Mehmet t/as ATF Errol J Mehmet Testamentary Trust (Third Respondent)
Cheers Aviation Pty Ltd t/as ATF KMCG Investment Trust (Fourth Respondent)
Matthew Timothy Cheers (Fifth Respondent)
Representation:
Counsel:
T Alexis SC, M Southwick (Appellants)
DA Smallbone (Respondents)
Solicitors:
Australian Law Group Heydons (Appellants)
Beswick Lynch Lawyers (Respondents)

File Number(s): 2020/140939
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2020] NSWSC 413

Date of Decision:

17 April 2020

Before:

Ward CJ in Eq

File Number(s):

2015/360420

Judgment

THE COURT: On 16 March 2021, Meagher JA made orders requiring Mr Murray John Carter, The Wheel Resort Pty Ltd and Cathscompany Pty Ltd, the vendors under a contract for the sale of land (together, the appellants) to provide security for costs of the appeal in the sum of $40,000 for the purchasers Messrs Ian, Cameron and Errol Mehmet and Cheers Aviation Pty Ltd and their guarantor, Mr Matthew Timothy Cheers (together, the respondents): Murray John Carter v Ian Mehmet t/as ATF Ian G Mehmet Testamentary Trust [2021] NSWCA 32. On 29 July 2021, the appellants paid the sum of $40,000 into Court as security for the respondents’ costs of the appeal.
On 25 November 2021, this Court allowed the appeal brought by the appellants against the respondents: Carter v Mehmet [2021] NSWCA 286.
The Court set aside the orders of the primary judge made on 17 April 2020 and lieu thereof ordered:

“(a) Judgment for the appellants against the respondents in the sum of $480,832.20 plus interest thereon from 29 November 2015 pursuant to s 100 of the Civil Procedure Act 2005 (NSW).
(b) Respondents pay the appellants’ costs of the proceeding below, including (as per the orders of the Court of Appeal made on 13…

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 Carter v Mehmet (No 2)

Details

AGLC: Carter v Mehmet (No 2) [2021] NSWCA 333
Case: [2021] NSWCA 333
Decision Date: 17 December 2021

CaseChat Overview and Summary

In *Carter v Mehmet (No 2)*, the appellants sought the release of a sum of money paid into court as security for the respondents' costs of an appeal. The appeal had previously been allowed, and the court was now considering the application for the return of the security.

The primary legal issue before the court was whether the appellants were entitled to the immediate release of the $40,000 paid as security for costs, given that their appeal had been successful. This involved considering the purpose of security for costs orders and the effect of an appeal being allowed on such an order.

The court reasoned that the purpose of an order for security for costs is to protect a respondent against the risk of an unsuccessful appellant being unable to pay the respondent's costs. Where an appeal is allowed, the successful appellant is generally entitled to recover their costs from the respondent, thereby negating the need for the security. Consequently, the court ordered the release of the $40,000 paid into court by the appellants. The respondents were also ordered to pay the costs of the appellants' motion seeking the return of the security.

Orders

Orders of the court

(1) The sum of $40,000 paid into Court by the appellants on 29 July 2021 be released to the appellants forthwith;

(2) The respondents pay the costs of the appellants of the motion seeking return of the sum paid into Court as security for costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Carter v Mehmet (No 2) [2021] NSWCA 333
Hearing dates:	On the papers
Date of orders:	17 December 2021
Decision date:	17 December 2021
Before:	Meagher JA at [1]; Gleeson JA at [1]; Payne JA at [1]
Decision:	(1) The sum of $40,000 paid into Court by the appellants on 29 July 2021 be released to the appellants forthwith; (2) The respondents pay the costs of the appellants of the motion seeking return of the sum paid into Court as security for costs.
Catchwords:	COSTS — security for costs — where appellants provided security for respondents’ costs of the appeal — where appeal allowed — order for release of sum paid as security
Cases Cited:	Carter v Mehmet [2021] NSWCA 286 Murray John Carter v Ian Mehmet t/as ATF Ian G Mehmet Testamentary Trust [2021] NSWCA 32
Texts Cited:	GE Dal Pont, Law of Costs (5th ed, 2021, LexisNexis)
Category:	Consequential orders
Parties:	Murray John Carter (First Appellant) The Wheel Resort Pty Ltd (Second Appellant) Cathscompany Pty Ltd (Third Appellant) Ian Mehmet t/as ATF Ian G Mehmet Testamentary Trust (First Respondent) Cameron Mehmet t/as ATF Cameron Mehmet Testamentary Trust (Second Respondent) Errol Mehmet t/as ATF Errol J Mehmet Testamentary Trust (Third Respondent) Cheers Aviation Pty Ltd t/as ATF KMCG Investment Trust (Fourth Respondent) Matthew Timothy Cheers (Fifth Respondent)
Representation:	Counsel: T Alexis SC, M Southwick (Appellants) DA Smallbone (Respondents) Solicitors: Australian Law Group Heydons (Appellants) Beswick Lynch Lawyers (Respondents)
File Number(s):	2020/140939
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2020] NSWSC 413 Date of Decision: 17 April 2020 Before: Ward CJ in Eq File Number(s): 2015/360420