Farah v Elias - [2015] NSWSC 1417

Supreme Court

New South Wales

Medium Neutral Citation: Farah v Elias [2015] NSWSC 1417
Hearing dates: 24 September 2015
Date of orders: 30 September 2015
Decision date: 30 September 2015
Jurisdiction: Common Law
Before: Harrison J
Decision:
Order the first defendant to pay the plaintiff’s costs of and incidental to the summons.

Catchwords: COSTS – where plaintiff sought prerogative relief with respect to proceedings in NCAT – where proceedings in this Court not pursued – where costs of proceedings to be determined by reference to issues that remain undecided in NCAT– whether plaintiff in this Court would have succeeded in NCAT – where costs should be paid by the defendant whose proceedings in NCAT were likely to fail
Legislation Cited: Civil Procedure Act 2005
Home Building Act 1989
Supreme Court Act 1970
Supreme Court Rules 1970
Cases Cited: Baulderstone Hornibrook Pty Ltd v Qantas Airways Ltd [2003] FCA 325
James v Surf Road Nominees (No 2) [2005] NSWCA 296
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Sunday Times Newspaper Co Ltd v McIntosh (1933) 33 SR (NSW) 371
Turkmani v Visvalingam (No 2) [2009] NSWCA 279
Category: Costs
Parties: Monzer Farah (Plaintiff)
Toni Elias (First Defendant)
Representation:
Counsel:
Dr A J Greinke (Plaintiff)
L Doust (Defendant)
Solicitors:
Navado Lawyers & Solicitors (Plaintiff)
Elias, Gates & Associates (Defendant)

File Number(s): 2015/145252
Publication restriction: Nil

Judgment

HIS HONOUR: By his summons filed in this Court on 15 May 2015 Monzer Farah sought the following orders:

The decision of the NSW Civil & Administrative Tribunal on 17 April 2015 to reject the plaintiff’s objection to paragraphs 5 and 6 [of] the summons for production issued on 10 February 2015 at the request of the defendant be set aside.

The Tribunal return the documents produced by the plaintiff on 17 April 2015 in answer to the summons to the plaintiff.

Costs.

In the events that have occurred, to which reference is made below, the only relief now sought by the plaintiff in this Court is an order for costs.

Background

Toni Elias is the first defendant. He and his wife commenced proceedings in the Tribunal against Alloha Construction & Formwork Pty Ltd with which company they had contracted to build a house at 19 Rawson Road, Greenacre. Works commenced in about December 2013 but the builder abandoned the site in April 2014 leaving the work incomplete. As far as Mr Elias was aware, the builder failed to arrange for a mandatory engineering certification of certain structural components of the works. It also transpired that the builder was not licensed to perform building works exceeding $20,000, which is the amount that triggers the requirement for Home Warranty Insurance under the Home Building Act 1989. Despite this deficiency, the builder submitted what purported to be a certificate of Home…

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: [2015] NSWSC 1417
Decision Date: 30 September 2015

CaseChat Overview and Summary

The case of Farah v Elias involved a dispute where the plaintiff sought prerogative relief concerning proceedings that had occurred in the New South Wales Civil and Administrative Tribunal (NCAT). The matter was heard by the Supreme Court of New South Wales. The plaintiff, Farah, sought to have the NCAT proceedings quashed on the grounds of unfairness and bias. The defendant, Elias, contested the application on the basis that it was premature and that the NCAT had not yet made a decision on the merits of the case. The primary issue before the court was whether the plaintiff would have succeeded in their application for prerogative relief if the matter had proceeded in the NCAT.

The court held that the plaintiff's application in the Supreme Court was premature and that the proper course was to allow the NCAT proceedings to run their course. The court found that the plaintiff had not demonstrated a sufficient likelihood of success in the NCAT, and as such, the costs of the Supreme Court proceedings should be borne by the defendant. The court reasoned that since the plaintiff's application in the Supreme Court was not pursued and the issues remained undecided in the NCAT, the costs should be determined by reference to those unresolved issues. The court concluded that the plaintiff's application in the NCAT was likely to fail, and therefore, the defendant should bear the costs of the proceedings in the Supreme Court.

The court's decision emphasised the importance of allowing the NCAT to resolve disputes before seeking prerogative relief in the Supreme Court. It highlighted that costs should be awarded in a manner that reflects the outcome of the proceedings and the likelihood of success of the parties' claims. The court's ruling was significant in guiding future litigants on the appropriate use of prerogative relief and the implications for costs in such cases.

Orders