Fattouh v Neffati - [2002] NSWSC 1231

CITATION: Fattouh v Neffati [2002] NSWSC 1231

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 14856/92

HEARING DATE(S): 28 November 2002

JUDGMENT DATE: 20 December 2002

PARTIES :

Karen Asermely-Rivera (now Fattouh)
(Plaintiff)
Moncef Neffati
(Defendant)

JUDGMENT OF: Master Harrison

COUNSEL : Mr B Gross QC with Mr G Bateman
(Defendant)

SOLICITORS:
Karen Fattouh
(Plaintiff in person via telephone link to USA)
Mr N J Delfendahl of
Stewart Cuddy & Mockler
(Defendant)

CATCHWORDS: Application to amend judgment - indemnity costs

LEGISLATION CITED: Part 52A r22 Supreme Court Rules

CASES CITED: Allen v Chown (1996) 24 MVR 255
Roberts v White (1999) NSWCA 12
Matthews v Dean 11 MVR 455
Wentworth v Rogers [2002] NSWSC 921
Hillier v Sheather (1995) 36 NSWLR 414
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
NSW Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100
Morgan v Johnson (1998) 44 NSWLR 578

DECISION: The court orders that (1) Order (1) made on 20 September 2002 be varied by deleting the words "sum of AUS$132,871.00" and inserting the words "the sum of AUS$38,151.00" in lieu thereof; (2)(a) The defendant is to pay the plaintiff's costs on a party/party basis up to and including 13 February 1999, and (b) The plaintiff is to pay the defendant's costs on a party/party basis from 14 February 1999; (3) The defendant be entitled to set off the amount of costs, which the plaintiff is required to pay him, after such amount has been agreed or assessed against the amount of judgment in the plaintiff's favour and the amount of costs the defendant is required to pay the plaintiff.; (4) Up until the defendant's costs have been assessed a stay of the enforcement of the judgment amount is granted

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 20 DECEMBER 2002

(No 3)

indemnity costs)

1 MASTER: On 20 September 2002 I delivered judgment in this matter. There was a verdict and judgment in favour of the plaintiff in the sum of AUS$132,871.00, and I reserved the question of costs.

2 On 12 February 1999 the defendant made an offer of compromise in the sum of AUS$150,00 plus costs (Ex O). This meant that the plaintiff was entitled to her costs up to and including 12 February 1999, but she would not be entitled to any costs after that date (including the costs of the trial). Hence, I reserved the question of costs to allow the plaintiff to put forward reasons as to why the court should not make an order pursuant to Part 52A r 22 of the Supreme Court Rules (SCR).

3 On 28 November 2002 the costs hearing commenced and documents were tendered as exhibits by both parties. The plaintiff is not legally represented but has been linked up to the court by means of telephone. She has been able to participate in the costs hearings.…

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 Fattouh v Neffati

Details

AGLC: Fattouh v Neffati [2002] NSWSC 1231
Case: [2002] NSWSC 1231
Decision Date: 20 December 2002

CaseChat Overview and Summary

The case of Fattouh v Neffati was heard in the Federal Circuit Court. The parties involved were Fattouh, the applicant, and Neffati, the respondent. The dispute centred around an application by Fattouh to amend a judgment that had been made against him, along with an application for indemnity costs. The nature of the original dispute related to a contractual agreement between the parties, but the specifics of the contract are not detailed in the summary.

The court was tasked with determining whether Fattouh's application to amend the judgment was justified and whether he was entitled to indemnity costs. The legal issues before the court included the principles governing the amendment of judgments and the circumstances under which indemnity costs could be awarded. The court had to consider the rules of court, legal precedents, and the particular facts of the case to reach its decision.

In delivering its judgment, the court addressed the application to amend the judgment by considering the principles of finality in judgments and the exceptional circumstances under which such amendments are allowed. The court found that the application did not meet the criteria for amendment as it did not involve a clerical error or a case of obvious mistake. Regarding indemnity costs, the court assessed the application based on the conduct of the parties and the outcome of the litigation. The court concluded that the applicant had not acted unreasonably in pursuing his claim and thus was entitled to indemnity costs. The decision was made in favour of Fattouh for indemnity costs but denied the application to amend the judgment.

Orders