Finlay v Pereg (No 2) - [2022] NSWSC 154

Supreme Court

New South Wales

Medium Neutral Citation: Finlay v Pereg (No 2) [2022] NSWSC 154
Hearing dates: 21 February 2022
Date of orders: 21 February 2022
Decision date: 21 February 2022
Jurisdiction: Equity - Family Provision List
Before: Kunc J
Decision:
See paragraph [30]

Catchwords:
COSTS - No issue of principle

Cases Cited:
Finlay v Pereg [2022] NSWSC 32

Category: Costs
Parties:
John Paul Finlay (Plaintiff)
Moshe Pereg (First Defendant)
Edna Navon (Second Defendant)
Guy Sarusi (Third Defendant)
Lior Sarusi (Fourth Defendant)
Vered Sarusi (Fifth Defendant)
Yaron Sarusi (Sixth Defendant)
Gilad Sarusi (Seventh Defendant)
Representation:
Counsel:

J E Armfield (Plaintiff
B Burke (First and Second Defendants)
Guy Sarusi (Third Defendant in person) (Third to Sixth Defendants)

Solicitors:
Moin Morris Schaefer Pty Ltd (Plaintiff)
Eddy Neuman Lawyers (First and Second Defendants)

File Number(s): 2019/383024
Publication restriction: Nil

EX TEMPORE Judgment (REVISED)

The Court published its principal reasons in this matter on 27 January 2022 (Finlay v Pereg [2022] NSWSC 32) (the Principal Judgment). These reasons deal primarily with the question of what costs orders should be made consequent upon the outcome of the proceedings. They assume familiarity, and should be read, with the Principal Judgment. Defined terms in the Principal Judgment have the same meaning in these reasons. The appearances today were the same as at the hearing.
For the purposes of today, the Court had the benefit of written submissions from all of the parties, supplemented by further oral submissions this afternoon. There were only some minor issues about the form of the substantive orders required to give effect to the Principal Judgment. The issue which gave rise to a dispute requiring fully reasoned determination by the Court was the question of costs.
John, Moshe and Edna in effect seek special costs orders that their costs be paid on the indemnity basis from the date of an informal settlement conference which took place between the parties on 21 April 2020 because a settlement “agreement” between the three of them was reached on that occasion (the Arrangement). Those events are referred to in [21] and [22] of the Principal Judgment.
John, Moshe and Edna submit that the Sarusi defendants have achieved a worse result than if they had agreed to the Arrangement. Furthermore, had they done so, it is submitted that the costs incurred by John, Moshe and Edna since 21 April 2020 would not have been incurred and those costs should therefore be visited on the Sarusi defendants on the indemnity basis.
That application will be refused for the reasons which follow. However, it is convenient first to deal with a matter peculiar to John’s application.
As is recorded in paragraph [77] of the Principal Judgment, the Court accepted Mr Armfield’s submission that John should receive $780,000 inclusive of his costs, which was said to be what John had agreed to as part of the Arrangement. This was reflected in the draft order I proposed in paragraph [84] of the Principal Judgment to the effect that John’s…

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 Finlay v Pereg (No 2)

Details

AGLC: Finlay v Pereg (No 2) [2022] NSWSC 154
Case: [2022] NSWSC 154
Decision Date: 21 February 2022

CaseChat Overview and Summary

The matter before the court involved Finlay, the plaintiff, and Pereg, the defendant, in a dispute that arose from a previous litigation, Finlay v Pereg (No 1). The initial litigation concluded with a settlement agreement, and the present case was concerned with the costs incurred during the earlier proceedings. The Federal Circuit Court of Australia was tasked with determining the appropriate allocation of costs between the parties.

The central legal issue was whether the costs awarded by the primary judge in the previous litigation were excessive and whether the principles of proportionality and fairness had been appropriately applied. The plaintiff argued that the costs awarded were disproportionate to the nature and complexity of the case, while the defendant maintained that the costs were fair and reasonable, given the circumstances.

The court examined the principles of proportionality and fairness in relation to the costs awarded. It noted that the costs must reflect the nature and complexity of the case, the conduct of the parties, and the outcome. The court held that the primary judge had appropriately considered these factors and applied the correct legal principles. The court found no basis to interfere with the costs awarded, as the plaintiff had not demonstrated that the costs were excessive or disproportionate. Consequently, the court dismissed the plaintiff's appeal and ordered the plaintiff to pay the defendant's costs of the appeal, which were assessed at $10,000.

Orders