Carter v Mehmet (No 3)

Case [2022] NSWCA 64


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Carter v Mehmet (No 3) [2022] NSWCA 64
Hearing dates: On the papers
Date of orders: 21 April 2022
Decision date: 21 April 2022
Before: Meagher JA, Gleeson JA, Payne JA
Decision:

(1)   Dismiss paragraphs 2 and 3 of the notice of motion dated 9 December 2021;

(2)   No order as to costs of paragraphs 2 and 3 of the notice of motion.

Catchwords:

COSTS — party/party — exceptions to general rule that costs follow the event — offer of compromise — where offer made to compromise claim and cross-claim — where no separate offer made in relation to appeal proceedings — circumstances in which it is appropriate to “otherwise order”

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 36.16, 42.14, 42.15, 42.15A, 51.47, 51.48, 51.49

Cases Cited:

Bartlett v Australia & New Zealand Banking Group Ltd (No 2) (2016) 92 NSWLR 670; [2016] NSWCA 142

Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trusts v Thompson (No 2) [2012] NSWCA 420

Carter v Mehmet [2021] NSWCA 286

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

Hutley v Cosco (No 2) [2021] NSWCA 335

Lewis Securities Ltd (in liq) v Carter (No 2) [2018] NSWCA 159

Mehmet v Carter [2017] NSWSC 1067

Mehmet v Carter [2018] NSWCA 305

Mendonca v Tonna (No 3) [2020] NSWCA 332

Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368

Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 3) [2021] NSWCA 160

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

  1. THE COURT: On 25 November 2021, this Court allowed an appeal by Mr Murray Carter, The Wheel Resort Pty Ltd and Cathscompany Pty Ltd (the appellants) against Messrs Ian, Cameron and Errol Mehmet, Cheers Aviation Pty Ltd and Mr Matthew Cheers (the respondents) and, in lieu of the orders made by the primary judge, gave judgment for the appellants against the respondents in the sum of $480,832.20 plus interest: Carter v Mehmet [2021] NSWCA 286. The Court also ordered that the respondents pay the appellants’ costs of the appeal and of the proceeding below. In addressing the present topic, familiarity with those principal…

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AGLC
Carter v Mehmet (No 3) [2022] NSWCA 64
Case
[2022] NSWCA 64
Decision Date

CaseChat Overview and Summary

The parties to this proceeding were Carter (appellant) and Mehmet (respondent). The dispute concerned an application by the respondent for an order that the appellant pay the respondent's costs of certain appeal proceedings, notwithstanding an earlier offer of compromise that had been made in the primary proceedings. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the respondent was entitled to an order for costs of the appeal proceedings, despite the fact that the offer of compromise made in the primary proceedings did not specifically address the appeal. The court was required to consider the circumstances in which it might depart from the general rule that costs follow the event, particularly in relation to offers of compromise that encompass both primary and appellate proceedings.

The Court of Appeal reasoned that the offer of compromise, which had been made in the primary proceedings, was intended to resolve all aspects of the litigation between the parties, including any potential appeals. The court noted that the offer was broad enough to encompass the appeal proceedings, and that the respondent had not made a separate offer specifically for the appeal. Consequently, the court determined that it was not appropriate to make an "otherwise order" in favour of the respondent regarding the costs of the appeal.

The Court of Appeal ordered that paragraphs 2 and 3 of the notice of motion dated 9 December 2021 be dismissed, and that there be no order as to the costs of those paragraphs.

Orders

Orders of the court

(1) Dismiss paragraphs 2 and 3 of the notice of motion dated 9 December 2021;

(2) No order as to costs of paragraphs 2 and 3 of the notice of motion.

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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