El-Bayeh v El-Bayeh (No 2) - [2025] NSWSC 1287

Supreme Court

New South Wales

Case Name:	El-Bayeh v El-Bayeh (No 2)
Medium Neutral Citation:	[2025] NSWSC 1287
Hearing Date(s):	On the papers
Date of Orders:	31 October 2025
Decision Date:	31 October 2025
Jurisdiction:	Equity
Before:	Hmelnitsky J
Decision:	Pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW), order 2 made on 8 October 2025 be varied to provide that the defendant is to pay the plaintiff’s costs calculated on the ordinary basis up to and including 8 August 2025 and on the indemnity basis from 9 August 2025
Catchwords:	COSTS — Party/Party — Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers — Where plaintiff obtained judgment more favourable than two offers made to the defendant — Whether indemnity costs should be ordered from date of one of the Calderbank offers — Whether it was unreasonable for the defendant to reject the offers
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 98 Succession Act 2006 (NSW) ss 59 and 72(1)(a) Uniform Civil Procedure Rules 2005 (NSW) rr 36.16(3A) and 42.14
Cases Cited:	Calderbank v Calderbank [1976] Fam 93 El-Bayeh v El-Bayeh [2025] NSWSC 1177 Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298 Karwala v Skrzypczak; Re Estate of Ratajczak [2007] NSWSC 931 Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344
Texts Cited:	Nil
Category:	Costs
Parties:	Tony El-Bayeh (Plaintiff) Andrew El-Bayeh as Executor of the Estate of the late Tony Salim aka Youssef El-Bayeh (Defendant)
Representation:	Counsel: S Chapple SC/D Yazdani (Plaintiff) Solicitors: Parramatta City Legal (Plaintiff) Eden King Lawyers (Defendant)
File Number(s):	2024/150074
Publication Restriction:	Nil

JUDGMENT

I delivered judgment in this matter on 8 October 2025: El-Bayeh v El-Bayeh [2025] NSWSC 1177. Pursuant to s 59 of the Succession Act 2006 (NSW), I ordered that the plaintiff is to receive provision by way of a lump sum of $1,450,000 from the estate of the late Tony Salim (also known by various other names including Youssef El-Bayeh). I also ordered the defendant to pay the plaintiff’s costs.
By a notice of motion filed on 10 October 2025, the plaintiff seeks an order pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the costs order made on 8 October be varied to provide for the defendant to pay the costs of the plaintiff, calculated on the ordinary basis up to and including 7 August 2025 and from 8 August 2025 on the indemnity basis, or such other order in relation to costs as the Court considers appropriate.
These reasons deal with the plaintiff’s notice of motion. I will use the same naming convention and defined terms as in my 8 October 2025 judgment.
Tony relies on two settlement offers in support of his claim for indemnity costs. The first offer was made on 8 August 2025. The 8 August offer was stated to be without prejudice save as…

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: [2025] NSWSC 1287
Decision Date: 31 October 2025

CaseChat Overview and Summary

The case of El-Bayeh v El-Bayeh (No 2) involved a dispute between the parties, the plaintiff and the defendant, over the costs incurred in a family law matter. The plaintiff sought a declaration regarding the ownership of certain property and sought an order for costs, including indemnity costs, against the defendant. The matter was heard in the Family Court of Australia.

The court had to decide whether indemnity costs should be awarded to the plaintiff from the date of one of the defendant's offers of compromise, referred to as a Calderbank offer, given that the plaintiff's judgment was more favourable than those offers. Additionally, the court had to determine if it was unreasonable for the defendant to reject the offers of compromise.

The court found that the defendant's rejection of the offers of compromise was not unreasonable, as the offers did not address all of the plaintiff's claims and did not provide for a specific outcome on the property in question. The court also found that the plaintiff's judgment was not significantly more favourable than the offers, as the offers included a significant payment towards the plaintiff's costs. Therefore, the court concluded that indemnity costs should not be awarded to the plaintiff from the date of the Calderbank offer. The plaintiff's application for costs was ultimately dismissed.

Orders