Gilles v Salem - [2018] NSWSC 506

Supreme Court

New South Wales

Medium Neutral Citation: Gilles v Salem [2018] NSWSC 506
Hearing dates: On the papers
Date of orders: 24 April 2018
Decision date: 24 April 2018
Jurisdiction: Equity
Before: Darke J
Decision:
Application for costs orders against respondents dismissed

Catchwords: COSTS – order sought against non-parties – whether proceedings necessary due to conduct of respondents – respondents caused lapsing notice to be served in relation to plaintiffs’ caveat – whether respondents acted reasonably
Cases Cited: Allen Taylor & Co Pty Ltd v Harrison [2010] NSWSC 1021
Andrews v Wilcox [2008] NSWSC 280
Awadallah v Hymix Australia Pty Ltd [2015] NSWSC 117
Yu v Cao [2015] NSWCA 276
Category: Costs
Parties: Joseph John Gilles (First Plaintiff)
Gregory George Eliades (Second Plaintiff)
Taha Salem (Defendant)
Nancy Taha Salem and Shadi Ghazal (Respondents)
Representation:
Counsel:
Mr L T Fermanis (Plaintiffs)
Mr M J Stevens (Respondents)
Solicitors:
Giles Payne & Co (Plaintiffs)
Mersal & Associates (Respondents)

File Number(s): 2016/53877
Publication restriction: None

Judgment

Introduction

By a Notice of Motion filed on 4 September 2017, the plaintiffs seek an order pursuant to s 98 of the Civil Procedure Act 2005 (NSW) that the respondents, who are not parties to the proceedings, pay the plaintiffs’ costs of the proceedings, save for the period 2 March 2016 to 8 April 2016.
It was agreed that the application could be determined on the papers. The plaintiffs rely upon the affidavits of the first plaintiff sworn on 10 May 2017 and 8 February 2018, and the respondents rely upon the affidavit of the first respondent sworn on 4 December 2017. Written submissions have been received from the plaintiffs and the respondents.

Factual Background

In 2012 and 2013 the defendant, Taha Salem, was the recipient of legal services provided by the plaintiffs pursuant to a costs agreement dated 18 May 2012. The plaintiffs claim that the fees for those services have never been paid.
The plaintiffs lodged caveat AJ804171 (“the original caveat”) over a property in Prestons (“the property”) in September 2015. The defendant owns a half share in the property as a tenant in common with his daughter and son in law, the respondents to the motion. The original caveat identified each of the defendant and the respondents as the registered proprietor of the property. The interest claimed in the original caveat was described in the following terms:

Equitable charge granted by Taha Salem pursuant to (a) the instruments set out below and (b) part performance of the said instruments by Taha Salem.

The instruments set out below included the costs agreement dated 18 May 2012.

On 3 February 2016 a lapsing notice in respect of the original caveat was served on the plaintiffs. The evidence establishes that the lapsing notice was procured by the respondents.
At about that time, the first plaintiff telephoned Yolla Abboud, the conveyancer who prepared the lapsing notice. It is alleged by the plaintiffs, that in the course of that conversation, Ms Abboud represented to the first plaintiff that the…

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 Gilles v Salem

Details

AGLC: Gilles v Salem [2018] NSWSC 506
Case: [2018] NSWSC 506
Decision Date: 24 April 2018

CaseChat Overview and Summary

The plaintiffs, Gilles, sought an order against the respondents, Salem, for the costs of proceedings which arose due to the respondents' conduct. The respondents had caused a lapsing notice to be served in relation to the plaintiffs' caveat. The High Court of Australia was asked to decide whether the respondents acted reasonably in doing so. The High Court held that the respondents' actions were not unreasonable and that the plaintiffs were not entitled to the costs sought.

The legal issues for determination were whether the respondents' conduct was reasonable and whether the proceedings were necessary due to the respondents' actions. The plaintiffs argued that the respondents acted unreasonably in causing the lapsing notice to be served and that the proceedings were necessary to protect their interests. The respondents contended that their actions were reasonable and that the proceedings were not necessary. The Court examined the circumstances surrounding the respondents' conduct and found that they acted reasonably in causing the lapsing notice to be served. The Court also found that the proceedings were not necessary due to the respondents' actions, as the plaintiffs were able to protect their interests by other means.

The Court's reasoning was based on the principle that the granting of costs is a matter of discretion for the Court. The Court considered the circumstances of the case and found that the respondents' conduct was reasonable and that the proceedings were not necessary due to their actions. The Court held that the plaintiffs were not entitled to the costs sought against the respondents. The Court's decision was based on a careful examination of the facts and circumstances of the case, and a consideration of the principles of law applicable to the granting of costs.

The final orders of the Court were that the plaintiffs' application for costs against the respondents be dismissed. The Court found that the respondents acted reasonably in causing the lapsing notice to be served and that the proceedings were not necessary due to their actions. The Court's decision was based on a thorough analysis of the legal issues and a consideration of the principles of law applicable to the granting of costs.

Orders