Fattouche v Klaymi
[2020] VSC 634
•30 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2019 03735
| NAFEZ FATTOUCHE & ANOR (according to the attached schedule) | First Plaintiff |
| v | |
| SHAWKAT KLAYMI & ANOR (according to the attached schedule) | First Defendant |
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JUDICIAL REGISTRAR: | Matthews JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 September 2020 |
DATE OF RULING: | 30 September 2020 |
CASE MAY BE CITED AS: | Fattouche v Klaymi |
MEDIUM NEUTRAL CITATION: | [2020] VSC 634 |
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PRACTICE AND PROCEDURE – Discovery – Applications for particular discovery – Supreme Court (General Civil Procedure) Rules 2015, r 29.08 – Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573.
PRACTICE AND PROCEDURE – Costs – Application for immediate taxation of costs orders previously made – Supreme Court (General Civil Procedure) Rules 2015, r 63.20.1 – Fanissa Pty Ltd & Anor v Versace & Anor [2016] VSC 416.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms L Collaris | Ward & Co Legal Consultants |
| For the Defendants | Mr A Sheed-Finck, solicitor | SMR Legal |
JUDICIAL REGISTRAR:
Introduction
By way of summonses filed 4 September 2020, the Plaintiffs and the Defendants each make applications in respect of the other party’s discovery. In addition, the Plaintiffs make an application for the immediate taxation of certain costs orders made in their favour on 28 February 2020.[1]
[1]By orders made on the Court’s own motion, each of these applications have been referred to me, pursuant to r 84.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), for hearing and determination.
The parties each filed written outlines of submissions prior to the hearing. I heard the applications on 23 September 2020 and gave brief ex tempore reasons on that day for my rulings. I indicated that I would later publish my reasons, as revised and expanded upon. These are those reasons.
Background
This proceeding concerns interests in the property in Moresby Crescent Heidelberg West, Victoria, 3081, being the land described in certificate of title vol 08484 folio 395 (‘Property’).
The Defendants are the registered proprietors of the Property.
By way of brief background:
(a) the Property was purchased on 11 July 1988 when the First and Second Plaintiffs on the one hand, and the First and Second Defendants on the other hand, became registered proprietors as tenants in common in equal shares;
(b) on 19 November 2004, the Plaintiffs transferred their right, title and interest in the Property to the Defendants;
(c) on 4 September 2017, a caveat lodged by the Plaintiffs was registered on the title to the Property, wherein the Plaintiffs claimed an interest in the Property under an implied, resulting or constructive trust; and
(d) these proceedings were issued on 19 August 2019 following receipt of a notice pursuant to s 89A(3) of the Transfer of Land Act 1958.
The key issue in dispute between the parties is whether the amount of $140,000 paid by the Defendants to the Plaintiffs on 27 October 2004 was a loan as the Plaintiffs contend or whether it was payment for a sale of the Plaintiffs’ half-share in the Property to the Defendants as the Defendants contend.
The Plaintiffs say that on or around 27 October 2004 they and the Defendants entered into an agreement whereby:
(a) the Defendants would lend the Plaintiffs $140,000;
(b) the Plaintiffs would transfer their 50% legal interest in the Property to the Defendants, as security for the loan, but retain their 50% beneficial interest;
(c) upon repayment of the loan, the Defendants would transfer back to the Plaintiffs their 50% legal interest in the Property.
The Plaintiffs say that by 12 June 2019 they had repaid the loan and that by notice of that date, they had demanded that the Defendants transfer their 50% interest back to them, which the Defendants have refused to do.
As already stated, the Defendants say that the $140,000 payment in October 2004 was the consideration paid by them for the sale of the Plaintiffs’ half share in the Property to them. They also state that:
(a) between November 2004 and March 2016, the Plaintiffs rented the Property from the Defendants, where rent was $1,920 per month and the Plaintiffs were to pay outgoings;
(b) the Plaintiffs were often behind in payment of rent and outgoings, such that they were in debt to the Defendants;
(c) the Plaintiffs sold their business operated from the Property to Albert Joseph in March 2016. The Defendants consented to the assignment of the lease to Mr Joseph provided that money owed by the Plaintiffs to them at that time was paid – Mr Joseph paid this $31,000 to the Defendants as he owed the Plaintiffs money at the time;
(d) prior to 19 November 2004, the rent from the Property was split 50/50 between the Plaintiffs and the Defendants; and
(e) the First Plaintiff became bankrupt on 24 March 2015 and was discharged from bankruptcy on 30 May 2018. Any interest he had as at 24 March 2015 in the Property vested in his trustees in bankruptcy (‘Trustees’) and remains vested in the Trustees, and so he does not have standing to make the claims he makes in this proceeding.
In response, the Plaintiffs say that by a deed of assignment dated 25 June 2020, the Trustees:
(a) assigned to the First Plaintiff all of their legal, beneficial and equitable interests in the Property to the First Plaintiff; all choses in action in connection with the Property and this proceeding; and all proceeds from this proceeding;
(b) the consideration for this assignment was $15,000, which was paid on 3 July 2020; and
(c) the First Plaintiff now has standing to make the claims in this proceeding.
The Plaintiffs agree that from about 19 November 2004 to March 2016 they paid the Defendants $1,920 per month, but say that $860 of this was a rental payment and the remaining $1,060 was a loan repayment.
The Plaintiffs rely on the affidavit of Marvin Ward sworn 21 September 2020. Mr Ward is a principal solicitor of Ward & Co Legal Consultants, solicitors for the Plaintiffs. They also rely on the affidavit of the First Plaintiff sworn 16 February 2020.
The Defendants rely on the affidavit of Mollie Michel sworn 21 September 2020. Ms Michel is a clerk employed by SMR Legal, solicitors for the Defendants.
The Plaintiffs’ application regarding discovery
By their summons filed 4 September 2020, the Plaintiffs seek the following orders regarding discovery from the Defendants pursuant to r 29.08, in respect of the First and Second Defendants’ tax returns and tax assessments for the financial years ending 30 June 2005 to 30 June 2016 inclusive (‘Further Discoverable Documents’):
(a) whether the Further Discoverable Documents are or have been in their possession; and
(b) if the Further Discoverable Documents have been but are no longer in their possession, when they parted with them and their belief as to what has become of them.
The Plaintiffs’ submissions
In their written outline, the Plaintiffs submit that the Further Discoverable Documents are discoverable and that the orders sought can be made under r 29.11 as the Defendants have failed to make discovery of all relevant documents that are or have been in their possession or power. The Plaintiffs say that the Defendants’ affidavit of documents does not comply with r 29.01.1(3) because it does not disclose the Further Discoverable Documents. The Plaintiffs also submit that if the affidavit of documents cannot be impugned, then r 29.08 may apply.
At the hearing, Counsel for the Plaintiffs drew my attention to the fact that the parties had agreed to exchange affidavits of documents prior to the mediation (which was done),[2] but that no order for discovery had previously been made and no notice for discovery had been served. It was therefore common ground that the application for discovery of the Further Discoverable Documents was more appropriately seen as an application under r 29.08 or pursuant to s 55 of the Civil Procedure Act 2010 (‘CPA’). I agree with this: the procedural history is such that it could not be said that there had been a failure to meet discovery obligations.
[2]As I understand it, these affidavits were unsworn, due to difficulties in having them sworn because of the COVID-19 restrictions, but nothing turns on this.
The Plaintiffs submit that the Further Discoverable Documents are discoverable as:
(a) the real issue in dispute is whether the $140,000 paid by the Defendants to the Plaintiffs on 27 October 2004 was a loan or the purchase price;
(b) the Defendants contend, in their further amended defence at paragraph 8, that from 19 November 2004 to March 2016 the Plaintiffs rented the Property on terms including payment of $1,920 rent per month;
(c) the Plaintiffs agree that during that time they paid the Defendants a monthly sum of $1,920 but $860 of it was for rent and the remainder was a loan repayment; and
(d) the Further Discoverable Documents are likely to disclose the sum that the Defendants were reporting to the Australian Taxation Office (‘ATO’) as income in the form of rental payments received from the Plaintiffs.
The Plaintiffs rely on Compagnie Financiere du Pacifique v Peruvian Guano Co[3] in support of their submission. In particular, they rely on the statement in that case that ‘the documents to be produced are not confined to those which would be evidence either to prove or disprove any matter in question in the action’,[4] but extends to documents which either directly or indirectly enable the other party to advance his own case or damage his opponent’s. Such would include ‘document[s] which may fairly lead him to a train of inquiry’.[5]
[3](1882) 11 QBD 55 (‘Peruvian Guano’).
[4]Peruvian Guano, 62.
[5]Peruvian Guano, 63.
The Defendants oppose the Plaintiffs’ application.
The Defendants’ submissions
The Defendants submit that the Further Discoverable Documents are not relevant. They say that the Plaintiffs’ case turns on the repayment of the alleged loan, which is said to be interest free. Loan repayments will not appear on a tax return, as they are not assessable income. The Plaintiffs say that the extent to which rental payments were assessed over an 11 year period will not assist the Court in determining the nature of the 2004 transaction. The Defendants further submit that the Plaintiffs do not know what they hope to find by seeking the Court’s intervention in the discovery process, such that this is a fishing expedition. The Defendants say that that the Plaintiffs seek documents going to the peripheral question of rent when what they need to prove is the existence and repayment of a loan.
The Defendants also submit that since the Plaintiffs did not always make the regular monthly payments but made ad hoc payments of lump sums from time to time, the tax returns are unlikely to show a regular monthly payment of rent.
The Defendants submit that the scope of what is discoverable is set out in r 29.01.1 and is limited to documents that are directly relevant to issues in dispute. The Defendants rely on Matthews v SPI Electricity Pty Ltd & Ors[6] to submit that when intervening in the discovery process, s 55 of the CPA stands for the proposition that: [7]
the Court must try to achieve an optimum balance so that discovery is undertaken by each party in the most timely, efficient and cost-effective manner, while ensuring that discovery is proportionate to the size of the case and appropriate to the interests of justice.
[6][2011] VSC 401..
[7][2011] VSC 401, [28].
The Defendants also rely on Volunteer Fire Brigades Victoria v CFA (Discovery Ruling),[8] where J Forrest J stated that the CPA requires a fair trial, which is not a perfect trial but ‘rather, the best trial a court can provide within reason and in proportion to the issues in dispute and the court’s resources.’[9] ‘Accordingly,’ his Honour said, ‘demands for discovery of documents which are peripheral to the central issues cannot be entertained.’[10]
[8][2016] VSC 573 (‘Volunteer Fire Brigades’).
[9]Volunteer Fire Brigades, [34].
[10]Volunteer Fire Brigades, [34].
The Defendants also submit that the evidence of the Plaintiffs is that they do not have the financial resources to meet any order for costs in the event that they are unsuccessful in this litigation or otherwise ordered to pay them. This evidence was contained in the First Plaintiff’s affidavit in opposition to the Security for Costs Application. The Defendants say that it follows that they are particularly vulnerable to the waste occasioned by unnecessary interlocutory steps in this proceeding, and the Court should be particularly alive to the observations of J Forrest J in Volunteer Fire Brigades as set out above.
Consideration
It seems to me that it is clearly part of the Plaintiffs’ case that they repaid the alleged loan over the years after November 2004. After all, their case is that once the alleged loan was repaid they were entitled to the transfer of their 50% interest in the Property back to them. The purpose of the payments made after November 2004 is therefore clearly one of the matters in issue here: the Defendants say it was all rent; the Plaintiffs say it was partly rent and partly loan repayment. While it is the case that the nature of the transaction entered into in 2004 is of key relevance, I do not accept the Defendants’ submission that documents going to payment of rent after that date are of peripheral relevance. They themselves submit that the Plaintiffs have to prove the existence and the repayment of the alleged loan. Since I do not consider that such documents are of peripheral relevance but are directly relevant to an issue in the proceeding, the question of the application of Peruvian Guano is not raised. I indicate here that if I am wrong about the direct relevance of such documents, then I would not have been persuaded to order their discovery if it was a train of inquiry that the Plaintiffs relied upon.
Given that rent is assessable income, one would expect that the Defendants’ tax returns for the relevant period would list income received by way of rent in respect of the Property. This would be so, whether the rent was received regularly monthly or in ad hoc amounts from time to time.
I therefore accept that those parts of the Defendants’ tax returns may be relevant and should be discovered.
In oral submissions, the Defendants submitted that if I was minded to order that the tax returns be discovered, then only those parts showing income should be discovered. I accept the Defendants’ concern that the tax returns are likely to contain information which is confidential to the Defendants and irrelevant to these proceedings, and so would confine the discovery in the manner suggested. That is, the year, identity of taxpayer, and description of income should be discovered. Counsel for the Plaintiffs accepted that the discovery be confined in this way.
I do not accept the Defendants’ submission that they would be prejudiced in having to make discovery of their tax returns for the relevant period by reason of costs. First, there was no evidence of this. Second, such costs are simply part of the costs of defending the proceeding, and I do not accept the Defendants’ submission that the costs associated with this discovery are a significant impost upon them.
I do not see how the tax assessments are likely to contain information as to what if any proportion of the payments made by the Plaintiffs over the relevant period are for rent. Counsel for the Plaintiffs properly conceded this.
The Defendants also submitted at the hearing that if the Defendants were required to discover their tax returns, then so should the Plaintiffs in that they should discover those parts of their tax returns where they claim or refer to deductions in respect of the business they operated from the Property. Counsel for the Plaintiffs properly conceded that these would be relevant, but sought the same limitations on which parts of the tax returns were discoverable.
The Plaintiffs’ application regarding the costs order made 28 February 2020
By their summons filed 4 September 2020, the Plaintiffs also seek an order pursuant to r 63.20.1 that the costs order made in their favour on 28 February 2020 be taxable forthwith.
This is opposed by the Defendants.
On 28 February 2020, I heard and determined the Defendants’ summons filed 2 October 2019 for security for costs (‘Security Application’) along with the Plaintiffs’ summons filed 13 February 2020 in respect of the Plaintiffs’ particulars and reply. I gave reasons ex tempore as to why I was going to dismiss the Security Application and as to the orders to be made on the Plaintiffs’ summons. After hearing argument, I then made the following orders in respect of costs:
(a) the Defendants are to pay 50% of the Plaintiffs’ costs of today’s appearance on a standard basis, to be taxed if not agreed;
(b) the Defendants are to pay the Plaintiffs’ costs of the Security Application on a standard basis, to be taxed if not agreed; and
(c) subject to these orders, there be no orders as to the costs of the Defendants’ summons filed 13 February 2020.
I will refer to the first two of these orders as the ‘Costs Orders’.
The ordinary rule is that interlocutory costs orders are not taxed until after the completion of the proceeding. Rule 63.20.1 provides as follows:
If an order for costs is made on an interlocutory application or hearing, the party in whose favour the order is made shall not tax those costs until the proceeding in which the order is made is completed, unless the Court orders that the costs may be taxed immediately.
Plaintiffs’ submissions
The Plaintiffs rely on Fanissa Pty Ltd & Anor v Versace & Anor,[11] where Hargrave J (as his Honour then was) stated that:[12]
there is no reason why an application [for immediate taxation under r 63.20.1] cannot be made after the relevant costs order has been made and authenticated without an attendant order for immediate taxation.
[11][2016] VSC 416 (‘Fanissa’).
[12]Fanissa, [23].
The Plaintiffs submit that the Court should exercise its discretion to order that the costs be taxed immediately as the interlocutory application involved a separate or discrete issue, being the Security Application, and the Plaintiffs are impecunious natural persons.
The Plaintiffs rely on the summary of the relevant legal principles by Hollingworth J in Dale v Clayton Utz (a firm) (No 3):[13]
[13][2013] VSC 593, [60], [65] (‘Dale’).
However, … the court’s discretion under r 63.20.1 to order that costs be taxed immediately is not circumscribed in any way by the rule itself, although it must be exercised judicially.
…
Courts have recognised that the demands of justice may require a departure from the ordinary rule for one or more of three broad reasons:
(a)Because of the conduct of the unsuccessful party;
(b)Because of the likely delay before the final completion of the proceeding; and
(c)Because the interlocutory application involves a separate or discrete issue.
These categories are not closed.[14]
[14]Fanissa, [26].
The Plaintiffs say that in this case, the costs of the Security Application are a separate or discrete issue and that there will be no duplication in the work of the Costs Court when it comes to taxing other costs in the proceeding.
The Plaintiffs also submit that in circumstances where the Costs Orders relate to a separate and discrete issue and where they are impecunious natural persons, they should not be required to wait until the conclusion of the proceeding to have the costs taxed.
Defendants’ submissions
The Defendants refer to Re Smagala; Cicmilovic v Renwick & Anor[15] where McMillan J stated that:
The rationales for not taxing costs before the completion of a proceeding include the avoidance of multiple taxations and the attendant costs, avoiding interlocutory applications being used as a means to exhaust the funds of an opposing party, and avoiding unfairness in a case where, for example, a party who is ultimately successful is unable to set off their judgment against an earlier liability to pay costs.
[15][2017] VSC 498, [8] (citations omitted) (‘Re Smagala’).
McMillan J then went on to note the same factors as referred to in Fanissa for consideration as to whether to depart from the ordinary rule.
The Defendants submit that there is no prospect of considerable delay in the completion of the proceedings; the hearing on 28 February 2020 was not discrete but addressed a number of matters; and there has been no unsatisfactory conduct on the part of the Defendants. The Defendants also submit that the Court has already considered costs, and that the Costs Orders made on 28 February were considered and nuanced and that there were four separate orders dealing with costs on that day, demonstrating a careful consideration of the costs issue.
The Defendants also submit that in Fanissa, the Court found that a delay in applying for immediate taxation was a relevant consideration:
(a) An application for immediate taxation should usually be advanced at the time the costs order is made, or very soon thereafter, to the judge making the order, who, having just made the costs order, is in control of all the relevant facts and can exercise the discretion on this ground efficiently.[16]
[16]Fanissa, [29].
Here, the Defendants say, the Costs Orders were made on 28 February 2020 and the Plaintiffs have not explained why they did not apply for immediate taxation then, and now 8 months have passed.
(b) The party applying for immediate taxation had had two opportunities to make the application at times when the proceeding was otherwise before the Court and the extra costs of the separate and late application could have been avoided.[17]
[17]Fanissa, [34].
Here, the Defendants say that the Plaintiffs could have raised immediate taxation on 28 February 2020; at the directions hearing on 15 May 2020; and at the directions hearing on 26 June 2020. I note that the application was foreshadowed by Plaintiffs’ counsel on the last occasion.
(c) The first opportunity to apply for immediate taxation was when the relevant costs order was made, where the relevant party was represented by counsel.[18]
Here, the Defendants say that both parties were represented by counsel at the hearing on 28 February 2020.
[18]Fanissa, [35].
The Defendants submit that the Plaintiffs have not explained their delay in bringing this application. They also submit that the Plaintiffs’ impecuniosity speaks against the exercise of the discretion to award immediate taxation because, if the Defendants are ultimately successful, no set-off will be possible.
Consideration
I accept, as I am bound to do, that an application for immediate taxation can be made separately and subsequently to the costs order itself.
I also accept that the Costs Orders concern a separate and discrete application. However, that does not mean that I am required to order immediate taxation: rather, it is one of the accepted reasons as to why I may so order.
Having regard to the discretionary factors identified, including those in Fanissa where the application for immediate taxation is made after the Costs Orders were made, I am not minded to exercise my discretion to order immediate taxation. In particular:
(a) the Plaintiffs have not identified why they did not apply for immediate taxation on 28 February 2020;
(b) the Plaintiffs have not explained why the application was not made earlier than it was. I do not consider it to be any answer to say that at the directions hearing on 26 June 2020 I ordered any interlocutory applications to be filed by 4 September – that may answer why the application was filed when it was, but it does not explain why it was not made earlier. However, I do not consider this to be a significant factor, as the application was made at the same time as other applications were made, so appearances were going to be likely in any event;
(c) there were a range of matters dealt with at the 28 February 2020 hearing, and all of the costs orders made on that day were made in the context of attempting to fairly allocate liability for costs between the parties on the basis of the various outcomes on that day. I do not have the benefit of a transcript of that day and neither party appears to have applied for it, and I therefore do not have the benefit of the reasons given on that day for making the various costs orders. I do not recall, for example, whether immediate taxation was mentioned on that day and not ordered. Counsel for the Plaintiffs and the Defendants’ solicitor both indicated to me that no application for immediate taxation was made on that day. Nonetheless, in all of these circumstances, I do not consider it appropriate to deal separately with an application now for immediate taxation;
(d) I do not consider it to be an efficient use of the Court’s resources, or more importantly those of the parties, particularly the Plaintiffs given their impecuniosity, for there to be multiple taxations of costs in this proceeding; and
(e) I do not consider it appropriate to separately and immediately tax the Costs Orders where the Plaintiffs are impecunious, since that would mean that a set-off against other costs orders, if there are any costs orders made in favour of the Defendants in the future, would not be possible.[19]
[19]Re Smagala, [8]; Dale, [58].
I accept the Plaintiff’s submission that the situation in Fanissa was different to that pertaining here in a number of respects, including that there were costs orders in that case going the other way. However, this does not persuade me to order immediate taxation of costs in this instance.
Accordingly, the Plaintiffs’ application for immediate taxation of the costs orders made in their favour on 28 February 2020 is refused.
The Defendants’ application regarding discovery
By their summons filed 4 September 2020, the Defendants seek discovery of the following two categories of documents by the Plaintiffs (‘Defendants’ Discovery Orders’):
1.Bank statements, receipts, invoices, correspondence or memoranda relating to or arising from the repayments alleged to have occurred before 12 June 2019 at paragraph 8 of the Ps FASOC; and
2.Any and all documents (including correspondence by email or letter or howsoever occurring) passing between the First Plaintiff (and his solicitors) to the trustee in bankruptcy and from the trustee in reply.
The Plaintiffs consent to an order for discovery of documents in both of these categories.
The Defendants seek orders that the Plaintiffs pay their costs of this application. This is opposed by the Plaintiffs.
Plaintiffs’ submissions
In their written outline, the Plaintiffs submit that the Defendants did not issue a letter of demand in respect of discovery before filing their summons. Further, the Plaintiffs submit that 6 days after the Defendants’ summons was served on them, the Plaintiffs communicated to the Defendants their consent to the Defendants’ Discovery Orders, but the Defendants’ position is that their summons should proceed to hearing. The Plaintiffs say that they would have agreed to discover the documents set out in the Defendants’ Discovery Orders if a demand had been made and that it was therefore unnecessary for the Plaintiffs to have filed the summons. The Plaintiffs further say that it was unreasonable for the Defendants to maintain their position that the summons proceed to hearing after the Plaintiffs had indicated their consent.
Defendants’ submissions
In their written outline, the Defendants submit that they had to bring their summons as the Category 2 documents had been requested and refused. They also say that as orders had been made on 26 June that all interlocutory applications had to be filed by 4 September 2020, it was convenient to also seek the Category 1 documents.
Consideration
In Mr Ward’s affidavit, he says that prior to receiving the Defendants’ summons, Ward & Co did not receive a letter of demand from the Defendants’ solicitors. He then says that he notes that on 17 July 2020 a request was made by the Defendants’ solicitors for the documents in Category 2, but this request was made in circumstances where a mediation was to be held and the Plaintiffs were not willing to incur the expense of discovering the documents sought because the matter may have settled at mediation.
The relevant correspondence is exhibited to Ms Michel’s affidavit. Nowhere in that correspondence is the explanation for refusing discovery of the documents in Category 2 now proffered by Mr Ward set out. Rather, the Plaintiffs simply refuse to provide anything other than the Deed of Assignment between the Trustees and the First Plaintiff.
In my view, both categories of documents sought by the Defendants are plainly relevant and ought to be discovered.
I note that the Plaintiffs’ consent to the Defendants’ Discovery Orders was communicated prior to any affidavit being filed by the Defendants. At that point, presumably the only costs which the Defendants had incurred had been the costs of drawing the summons and the filing fee.
The question of the costs of the Defendants’ summons was left to the end of the hearing, by which time the outcome in respect of the other applications was known. In light of that, Counsel for the Plaintiffs submitted that the costs of all applications should be dealt with as a whole, which the Defendants accepted. The Plaintiffs submitted that given that both parties had had some success and some failure, no order as to costs for both summonses was appropriate. The Defendants, for similar reasons, sought that the costs of both summonses be reserved.
I indicated that I saw no reason why the question of the costs of these application should be held over to another time and possibly to the trial judge, but should be dealt with now. In my view, the appropriate order in respect of the costs of both summonses is that the parties’ costs of them should be their costs in the proceeding. Having indicated this, both parties preferred this approach.
Conclusion
The parties were asked to provide a draft form of orders to give effect to these rulings, which orders were also to include the usual pre-trial orders now that the interlocutory applications had been determined.
SCHEDULE OF PARTIES
| S ECI 2019 03735 | |
| BETWEEN: | |
| NAFEZ FATTOUCHE | First Plaintiff |
| MINERVA FATTOUCHE | Second Plaintiff |
| - v - | |
| SHAWKAT KLAYMI | First Defendant |
| WAFFA KLAYMI | Second Defendant |
0
2
0