El-Mir and 1 Or v Risk [No 2] - [2005] NSWCA 260

CITATION:
El-Mir & 1 Or v Risk [No 2] [2005] NSWCA 260

HEARING DATE(S):
Written submissions

JUDGMENT DATE:

8 August 2005

JUDGMENT OF:
Handley JA at 1; Ipp JA at 2; McColl JA at 3

DECISION:
(1) The grant of leave to amend the defence in Order 3 of the Court's orders in the primary judgment be subject to the appellants paying the costs of the proceedings in the District Court from 22 August 2001 up to and including the hearing of the reference by Mr O'Mara on 17 March 2003. (2) Costs of the adoption hearing before Balla DCJ on 18 July 2003 to be in the discretion of the judge who determines the separate issue the subject of Order 4 in the primary judgment. (3) Amend Order 6 by substituting the amount "$194,591.55" for the amount "$199,172.88" therein appearing. (4) The parties to bear their own costs of the written submissions consequent upon the primary judgment.

CATCHWORDS:
COSTS

LEGISLATION CITED:
District Court Rules 1973

CASES CITED:
El-Mir v Risk [2005] NSWCA 215
Maloney v Kull (Court of Appeal, unreported, 21 March 2003)
Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130
Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1

PARTIES:
Abdullah El-Mir (First Appellant)
Mona El-Mir (Second Appellant)
Gary Risk (Respondent)

FILE NUMBER(S):
CA 40661/03

COUNSEL:
J Bartos (First and Second Appellants)
E M Olsson SC (Respondent)

SOLICITORS:
David Begg & Associates (First and Second Appellants)
Snelgroves Solicitors (Respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 9850/00

LOWER COURT JUDICIAL OFFICER:
Balla J

CA 40661/03
DC 9850/00

HANDLEY JA
IPP JA
McCOLL JA
Monday, 8 August 2005

Abdullah EL-MIR and Mona EL-MIR v Gary RISK [No 2]

Judgment on Costs

1 HANDLEY JA: I agree with McColl JA.

2 IPP JA: I agree with McColl JA.

3 McCOLL JA: The Court delivered its judgment in this matter on 24 June 2005: El-Mir v Risk [2005] NSWCA 215 (the “primary judgment”). Pursuant to Order 3 the appellants were granted leave to amend their Notice of Grounds of Defence subject to such terms as to the costs of the earlier proceedings in the District Court and the reference as this Court may impose after receiving further submissions.

4 A timetable was set requiring the respondent to file written submissions as to the terms as to which leave should be granted within fourteen days. The appellants to file written submissions in reply within a further fourteen days and the respondent to file any submissions in reply within a further seven days.

5 Those times have now expired. The Court has received written submissions from both the respondent and the appellants. None have been received pursuant to the liberty granted to the respondent to file submissions in reply and, accordingly, I assume that the respondent is content to rely upon his primary submissions on this issue.

6 The respondent submits that the grant of leave to amend the defence…

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: [2005] NSWCA 260
Decision Date: 8 August 2005

CaseChat Overview and Summary

In *El-Mir and 1 Or v Risk [No 2]*, the New South Wales Court of Appeal considered an appeal concerning costs orders made by the primary judge. The dispute involved claims and defences that had evolved throughout the proceedings in the District Court.

The central legal issues before the Court of Appeal were: (a) whether the primary judge erred in granting leave to amend the defence, and if so, what the appropriate costs consequences should be; (b) how the costs of a specific adoption hearing should be dealt with; and (c) whether an amount specified in a previous order should be corrected.

The Court of Appeal reasoned that the grant of leave to amend the defence should be conditioned on the appellants paying the costs incurred in the District Court between 22 August 2001 and 17 March 2003, reflecting the disruption and additional work caused by the amendment. Regarding the adoption hearing, the Court determined that its costs should be left to the discretion of the judge who would ultimately decide a separate issue. The Court also ordered a minor correction to a monetary amount in a previous order.

Consequently, the Court of Appeal ordered that leave to amend the defence be subject to the appellants paying specified District Court costs. The costs of the adoption hearing were to be determined by the judge hearing the separate issue. Order 6 of the primary judgment was amended to reflect a corrected sum, and the parties were to bear their own costs for written submissions following the primary judgment.

Orders

Orders of the court

(1) The grant of leave to amend the defence in Order 3 of the Court's orders in the primary judgment be subject to the appellants paying the costs of the proceedings in the District Court from 22 August 2001 up to and including the hearing of the reference by Mr O'Mara on 17 March 2003. (2) Costs of the adoption hearing before Balla DCJ on 18 July 2003 to be in the discretion of the judge who determines the separate issue the subject of Order 4 in the primary judgment. (3) Amend Order 6 by substituting the amount "$194,591.55" for the amount "$199,172.88" therein appearing. (4) The parties to bear their own costs of the written submissions consequent upon the primary judgment.

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.

CITATION:	El-Mir & 1 Or v Risk [No 2] [2005] NSWCA 260
HEARING DATE(S):	Written submissions
JUDGMENT DATE:	8 August 2005
JUDGMENT OF:	Handley JA at 1; Ipp JA at 2; McColl JA at 3
DECISION:	(1) The grant of leave to amend the defence in Order 3 of the Court's orders in the primary judgment be subject to the appellants paying the costs of the proceedings in the District Court from 22 August 2001 up to and including the hearing of the reference by Mr O'Mara on 17 March 2003. (2) Costs of the adoption hearing before Balla DCJ on 18 July 2003 to be in the discretion of the judge who determines the separate issue the subject of Order 4 in the primary judgment. (3) Amend Order 6 by substituting the amount "$194,591.55" for the amount "$199,172.88" therein appearing. (4) The parties to bear their own costs of the written submissions consequent upon the primary judgment.

CATCHWORDS:	COSTS
LEGISLATION CITED:	District Court Rules 1973
CASES CITED:	El-Mir v Risk [2005] NSWCA 215 Maloney v Kull (Court of Appeal, unreported, 21 March 2003) Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1
PARTIES:	Abdullah El-Mir (First Appellant) Mona El-Mir (Second Appellant) Gary Risk (Respondent)
FILE NUMBER(S):	CA 40661/03
COUNSEL:	J Bartos (First and Second Appellants) E M Olsson SC (Respondent)
SOLICITORS:	David Begg & Associates (First and Second Appellants) Snelgroves Solicitors (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 9850/00
LOWER COURT JUDICIAL OFFICER:	Balla J