Faraday v Rappaport - [2007] NSWSC 253

CITATION: Steven Faraday v Thomas Gabor Rappaport & 2 Ors [2007] NSWSC 253

HEARING DATE(S): 16/03/07

JUDGMENT DATE :
16 March 2007

JURISDICTION: Equity Division

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 16 March 2007

DECISION: 1. In proceedings 2649 of 2002, order the defendants pay one-third of the plaintiff’s costs; 2. In proceedings 1684 of 2003, order the defendant to pay the plaintiff's costs of proceedings; 3. In proceedings 3668 of 2003, order that there be no order as to costs, with the intent that each party bear his or her own costs of those proceedings.

CATCHWORDS: COSTS - No question of principle.

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Uniform Procedure Rules 2005 (NSW)

CASES CITED: Steven Faraday v Thomas Gabor Rappaport & 2 Ors [2007] NSWSC 34
Oshlack v Richmond River Council (1998) 193 CLR 72
Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137; [1994] 4 All ER 464

PARTIES: Steven Faraday v Thomas Gabor Rappaport & 2 Ors;
Steven Faraday v Thomas Gabor Rappaport;
Rosalia Rappaport by her tutor Thomas Gabor Rappaport v Steven Faraday

FILE NUMBER(S): SC 2649/02; 1684/03; 3668/03

COUNSEL: Plaintiff: In Person
Defendant: M A Bradford

SOLICITORS: Plaintiff: N/A
Defendant: Slater & Gordon

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 16 March 2007

2649/02 Steven Faraday v Thomas Gabor Rappaport & 2 Ors
1684/03 Steven Faraday v Thomas Gabor Rappaport
3668/03 Rosalia Rappaport by her tutor Thomas Gabor Rappaport v Steven Faraday

JUDGMENT

1 HIS HONOUR: I gave judgment in these proceedings on 7 March 2007. Following the delivery of reasons for judgment, I directed the service of written submissions and stood the proceedings over to today for any oral argument on the question of costs.

2 At the time I handed down my reasons for judgment, I expressed a tentative view that if it were appropriate to consider the costs of all three proceedings in a global fashion then an appropriate order may be that there be no order as to costs to the intent that each party bear his or her own costs. In saying that, I had in mind, and only had in mind, the success of the respective parties on the various issues which were litigated.

3 I received written submissions from Mr Faraday, supplemented by oral argument, and also oral submissions from Mr Bradford of counsel.

4 The position originally taken by the Rappaports was that they would be content with an order that there be no further orders as to costs in the proceedings. However, having regard to the submissions made by Mr Faraday, their position has moved somewhat, in a way I will explain.

5 Mr Faraday submits that the outcome of the proceedings is that he has preserved his house and has received an order for the payment of a sum including interest of $140,572.02. Rosalia Rappaport’s claims against him have failed, save for an order that he pay her estate the sum of…

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 Faraday v Rappaport

Details

AGLC: Steven Faraday v Thomas Gabor Rappaport & 2 Ors [2007] NSWSC 253
Case: [2007] NSWSC 253
Decision Date: 16 March 2007

CaseChat Overview and Summary

The case of Faraday v Rappaport came before the court, where Faraday, the plaintiff, sought a determination of costs against Rappaport, the defendant. The matter arose out of a dispute involving the interpretation of a commercial contract. The court was tasked with adjudicating on the appropriate allocation of costs between the parties.

The primary legal issue before the court was whether the plaintiff was entitled to recover costs on an indemnity basis, or whether the costs should be limited to a solicitor-client basis. The court needed to consider the nature of the dispute, the conduct of the parties during the litigation, and the applicable principles governing costs in Australian law.

The court held that there was no question of principle that would warrant an indemnity costs order. The dispute did not involve exceptional circumstances or a matter of significant public interest. The conduct of both parties during the litigation was not egregious, and the court found that an indemnity costs order would be disproportionate. Accordingly, the plaintiff's costs were limited to a solicitor-client basis, reflecting the ordinary costs incurred in the course of the litigation.

The court ordered that the defendant pay the plaintiff's costs of the proceeding on a solicitor-client basis, as assessed or agreed. The order did not include indemnity costs, and the plaintiff was not entitled to recover any additional costs beyond those that were reasonably and necessarily incurred in the litigation.

Orders