David v Kazal (No 2) - [2020] NSWSC 105

Supreme Court

New South Wales

Medium Neutral Citation: David v Kazal (No 2) [2020] NSWSC 105
Hearing dates: On the papers
Decision date: 20 February 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) There be no order as to the costs of the defendants’ notice of motion filed on 16 August 2019 (such costs to include the hearings on 3 September 2019, 6 December 2019 and 6 February 2020), with the intention that each party bear his own costs.
(2) Confirm order (4) made on 6 February 2020 that the costs of the proceedings be otherwise reserved pending the outcome of the appeal filed by the first and second defendants in the US Ninth Circuit Court of Appeals.
Catchwords:
COSTS — Party/Party — General rule that costs follow the event applicable to applications for security for costs — interlocutory dispute — where each party had a measure of success — no order as to costs
PRIVATE INTERNATIONAL LAW — Foreign judgments and orders — costs otherwise reserved pending outcome of appeal against foreign judgment
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 67, 98
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.21
Cases Cited: David v Kazal [2019] NSWSC 1763
Globus Investments Pty Ltd v William Pty Ltd [2016] NSWSC 613
Hoffmann v Challis (No 2) [2016] NSWSC 269
Wollongong Coal Ltd v Gujarat NRE Properties Pty Ltd [2019] NSWSC 187; (2019) 139 ACSR 107
Category: Costs
Parties: Rodric David (Plaintiff)
Tony Kazal (First Defendant)
Adam Kazal (Second Defendant)
Charif Kazal (Third Defendant)
Representation:
Counsel (for written submissions):
J Hogan-Doran (Plaintiff)
S Cromb (Defendants)
Solicitors:
Aitken Lawyers Pty Ltd (Plaintiff)
HWL Ebsworth (Defendants)

File Number(s): 2019/193603

Judgment

Introduction

On 10 December 2019 I made orders, on the application of Tony, Adam and Charif Kazal (the defendants), that Rodric David provide security for costs in the sum of $20,000: David v Kazal [2019] NSWSC 1763 (the Motion Judgment). I reserved the question of costs. The parties have agreed that costs may be dealt with on the papers and have exchanged written submissions accordingly.

Relevant facts

By summons filed on 21 June 2019 the plaintiff commenced these proceedings, seeking to register judgments obtained by him in the United States against the defendants (the US Judgments). The summons was returnable on 2 July 2019. The plaintiff failed to appear. The second defendant appeared by his solicitor, HWL Ebsworth, who asked the Court to make directions which provided that service could be effected on the balance of the defendants by service on HWL Ebsworth. Directions were also made about how applications by the parties were to proceed, including a proposed application by the defendants for a stay of proceedings and for security for costs. The matter was stood over to 16 August 2019 for further directions.
The plaintiff filed an amended summons on 10 July 2019. The matter came before the Registrar on 16 July 2019. On that day, the Registrar ordered the plaintiff to pay the defendants’ costs of the…

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 David v Kazal (No 2)

Details

AGLC: David v Kazal (No 2) [2020] NSWSC 105
Case: [2020] NSWSC 105
Decision Date: 20 February 2020

CaseChat Overview and Summary

The Court heard an appeal from a decision regarding the costs of an interlocutory dispute between David and Kazal. The primary dispute involved a determination on the costs associated with an application for security for costs, a matter which had been resolved with neither party achieving a complete victory. The Court of Appeal was tasked with addressing whether the general rule, that costs follow the event, should apply in this specific instance where both parties had some success. The Court also considered whether the costs should be reserved pending the outcome of an appeal against a foreign judgment.

The legal issues before the Court were twofold. Firstly, the Court needed to decide whether the general rule that costs follow the event should apply to an interlocutory dispute where each party had some measure of success. Secondly, the Court had to consider whether the costs should be reserved pending the outcome of an appeal against a foreign judgment. This involved an analysis of the interplay between the domestic rules on costs and the principles of private international law concerning foreign judgments.

In delivering the judgment, the Court noted that both parties had achieved some success in the proceedings. Consequently, the Court found it appropriate not to make any order as to the costs. The Court held that the general rule of costs following the event should not be applied rigidly in this interlocutory context. Regarding the appeal against the foreign judgment, the Court determined that the costs should be reserved pending the outcome of that appeal, in line with the principles of private international law. The Court concluded that the balance of the interests of justice was best served by reserving the costs until the appeal against the foreign judgment was resolved.

No final orders were made in the appeal regarding the domestic costs, and the costs were reserved pending the outcome of the appeal against the foreign judgment. The Court's decision reflects a nuanced approach to the application of the general rule of costs in interlocutory disputes and the consideration of foreign judgments under private international law.

Orders