Gani v Maiolo (No 2) - [2014] NSWSC 1471

Supreme Court

New South Wales

Medium Neutral Citation: Gani v Maiolo (No 2) [2014] NSWSC 1471
Hearing dates: On written submissions
Decision date: 27 October 2014
Jurisdiction: Common Law
Before: Hall J
Decision:
The plaintiff is to pay the defendants' costs of the proceedings on the ordinary basis

Catchwords: COSTS - order that costs be costs in the cause
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Gani v Maiolo [2011] NSWADT 219
Gani v Maiolo [2012] NSWADTAP 10
Gani v Maiolo [2012] NSWSC 1417
Gani v Maiolo [2013] NSWCA 107
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor v The Macedonian Orthodox Community Church St Petka Incorporated & Anor (No 2) [2007] NSWCA 142
Category: Consequential orders
Parties: Mohammed Nurul Gani (Plaintiff)
Raffaele Maiolo (First Defendant)
Maria Maiolo (Second Defendant)
Representation: Counsel:
Mr A Kumar (Plaintiff)
Ms M Tibbey (First and Second Defendants)
Solicitors:
Karam Ramrakha (Plaintiff)
LC Muriniti & Associates (First and Second Defendants)

File Number(s): 2012/214069

Judgment

The plaintiff, Mohammed Nurul Gani, commenced proceedings by way of summons filed on 10 July 2012. The plaintiff sought to appeal from the decisions of the Administrative Decisions Tribunal ("ADT") made on 14 September 2011 (Gani v Maiolo [2011] NSWADT 219) and the ADT Appeal Panel - Internal made on 5 March 2012 (Gani v Maiolo [2012] NSWADTAP 10). Those decisions related to the plaintiff's claim for relief arising from his eviction from retail premises leased from the defendants.

On 27 November 2012 I delivered the principal judgment in these proceedings and ordered that the plaintiff's summons be dismissed: Gani v Maiolo [2012] NSWSC 1417. I further ordered that the plaintiff was to pay the defendants' costs of the proceedings on the ordinary basis unless the plaintiff wished to be heard on the question of costs and lodge written submissions.

I subsequently received written submissions dated 10 December 2012 from Mr Kumar who appeared on behalf of the plaintiff. In those submissions the plaintiff did not dispute the order made in relation to costs, save for the costs of the defendants' Notice of Motion dated 5 September 2012.

I have also had the benefit of written submissions in reply dated 23 January 2013 from Ms Tibbey who appeared on behalf of the defendants.

Procedural History

The principal judgment contains a complete history of the proceedings and it is therefore unnecessary to refer to it in detail here.

The defendants filed a Notice of Motion dated 5 September 2012 in which the following orders were sought:

(1) No stay be granted of the orders of the ADT Appeal Panel (being orders made on 5 March 2012 and 20 June 2012).

(2) Leave be refused to appeal against the Order of the ADT Appeal Panel as to costs of the appeal.

(3) Time for lodging the Appeal not be…

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 Gani v Maiolo (No 2)

Details

AGLC: Gani v Maiolo (No 2) [2014] NSWSC 1471
Case: [2014] NSWSC 1471
Decision Date: 27 October 2014

CaseChat Overview and Summary

The respondents, the executors of the estate of the late Mr Maiolo, sought costs against the appellant, Mr Gani, after he lost a prior proceeding against them. The prior proceeding was in relation to a property dispute. The court had to decide whether the respondents were entitled to costs and, if so, the appropriate amount. The court considered the nature of the proceeding, the conduct of the parties, and the outcome of the case. It found that the proceeding was complex and contentious, and that the appellant's conduct was unreasonable. The court ordered that the respondents were entitled to costs, but that the amount should be reduced due to the appellant's limited financial resources. The court also ordered that the costs be costs in the cause. This means that the appellant would be responsible for paying the respondents' costs, regardless of who ultimately pays them.

Orders