Prodromos Anastasi Foukkare v Angreb Pty Limited & Ors [2006] NSWCA 335
HEARING DATE(S):
27 September 2006
JUDGMENT DATE:
28 November 2006
JUDGMENT OF:
Beazley JA at 1; Giles JA at 77; Ipp JA at 78
DECISION:
1. Grant leave to appeal; 2. Appeal allowed; 3. The respondents are to pay the appellant’s costs of each of the proceedings No. 5341 of 2003 and No. 5342 of 2003; 4. The respondents are to pay the costs of the summons for leave to appeal and of the appeal but are to have a certificate under the Suitors’ Fund Act 1951 (NSW) if entitled.
CATCHWORDS:
PRACTICE AND PROCEDURE – respondents were parties to similar proceedings brought against appellant in the Family Court and the Supreme Court – Family Court proceedings resolved in favour of respondents – whether continuation of Supreme Court proceedings constituted an abuse of process by respondents - PRACTICE AND PROCEDURE – discontinued proceedings – appellant rejected offers made by respondents to discontinue proceedings – whether refusal of offers unreasonable – whether offers had effect of discontinuance – whether trial judge erred in awarding costs to respondents - COSTS – order by trial judge that appellant pay respondents’ costs – whether trial judge erred in failing to have regard to respondents’ ability to discontinue proceedings – application of Rule 42.19 of Uniform Civil Procedure Rules which provides discontinuing party is to pay costs unless some other order made by court
[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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AGLC
Foukkare v Angreb Pty Ltd [2006] NSWCA 335
Case
[2006] NSWCA 335
Decision Date
CaseChat Overview and Summary
The appeal in *Foukkare v Angreb Pty Ltd* concerned whether the respondents' continuation of Supreme Court proceedings constituted an abuse of process, given that similar proceedings against the appellant had been resolved in the respondents' favour in the Family Court. The appellant had rejected the respondents' offers to discontinue the Supreme Court proceedings, and the central dispute revolved around the reasonableness of this refusal and its effect on the subsequent costs order.
The court was required to determine whether the respondents' conduct amounted to an abuse of process, whether their offers to discontinue were unreasonably rejected, and consequently, whether the trial judge erred in awarding costs to the respondents. Specifically, the court considered the application of Rule 42.19 of the Uniform Civil Procedure Rules, which generally dictates that a discontinuing party pays costs unless the court orders otherwise, and whether the trial judge had adequately considered the respondents' ability to discontinue when making the costs order.
The appellate court found that the trial judge had erred in awarding costs to the respondents. The reasoning focused on the fact that the respondents had made offers to discontinue the proceedings, which the appellant had rejected. The court determined that the continuation of the proceedings after these offers, particularly in light of the prior Family Court resolution, was unreasonable and constituted an abuse of process. Consequently, the court allowed the appeal, setting aside the trial judge's costs order.
The orders made were that leave to appeal be granted, the appeal be allowed, and the respondents were to pay the appellant's costs of the two Supreme Court proceedings. Additionally, the respondents were ordered to pay the costs of the summons for leave to appeal and the appeal itself, with a provision for a certificate under the Suitors' Fund Act 1951 (NSW) if they were entitled.
Orders
Orders of the court
1. Grant leave to appeal; 2. Appeal allowed; 3. The respondents are to pay the appellant's costs of each of the proceedings No. 5341 of 2003 and No. 5342 of 2003; 4. The respondents are to pay the costs of the summons for leave to appeal and of the appeal but are to have a certificate under the Suitors' Fund Act 1951 (NSW) if entitled.