Haigh v Haddad (No 2) - [2024] NSWSC 1572

Supreme Court

New South Wales

Medium Neutral Citation: Haigh & Anor v Haddad & Anor (No 2) [2024] NSWSC 1572
Hearing dates: On the papers
Date of orders: 9 December 2024
Decision date: 09 December 2024
Jurisdiction: Common Law
Before: Weinstein J
Decision:
(1) The plaintiffs are to pay the costs reserved by Harrison AsJ on 21 October 2022; and
(2) The plaintiffs are to pay the costs of the proceedings, including the costs reserved by Harrison AsJ on 21 October 2022 and this notice of motion, fixed in the gross sum of $160,000.

Catchwords:
COSTS – application for costs order to be paid in gross sum – no question of principle – where proceedings dismissed on appeal from Associate Justice – gross sum costs order made in respect of proceedings including costs of proceedings giving rise to the appeal

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), r 42.7

Cases Cited:
Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 31
BCEG International (Australia) Pty Ltd v Xiao [2024] NSWSC 922
Haigh & Anor v Department of Planning NSW [2022] NSWSC 1434
Haigh & Anor v Haddad & Anor [2024] NSWSC 904
Hamod v New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 734
James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84
Wallis v Rudek [2020] NSWSC 161

Texts Cited:
Nil

Category: Costs
Parties: Stephen William Haigh (First Plaintiff)
Dimitrios Kikiras (Second Plaintiff)
Department of Planning NSW (First Defendant)
Sam Haddad (Second Defendant)
State of New South Wales (Third Defendant)
Representation:
Counsel:
V Thomas SC (First, Second and Third Defendants)
Solicitors:
Mihalatos & Associates Solicitors (First and Second Plaintiffs)
Crown Solicitor’s Office (First, Second and Third Defendants)

File Number(s): 2020/308863
Publication restriction: Nil

JUDGMENT

On 26 July 2024, I gave judgment in Haigh & Anor v Haddad & Anor [2024] NSWSC 904 (“Haigh 2024”), which concerned an appeal and a cross-appeal from a decision of Harrison AsJ in Haigh & Anor v Department of Planning NSW [2022] NSWSC 1434 (“Haigh 2022”) striking out a statement of claim filed by the plaintiffs on 28 October 2020 pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), but permitting the second plaintiff to replead one minor aspect of his claim, that being a claim for mental harm and psychiatric injury. Her Honour reserved the question of costs.
This judgment should be read with my judgment in Haigh 2024 to understand the nature and complexity of the proceedings both before Harrison AsJ and me.
The appeal before me proceeded by way of re-hearing: see Haigh 2024 at [8]-[11].
On 26 July 2024, I made the following orders:-

Orders 2 and 4 made by Harrison AsJ on 21 October 2022 be set aside;

Pursuant to r 13.4 of the UCPR, the proceedings are dismissed;

The plaintiffs are to pay the defendants’ costs of these proceedings; and

In the absence of an…

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 Haigh v Haddad (No 2)

Details

AGLC: Haigh v Haddad (No 2) [2024] NSWSC 1572
Case: [2024] NSWSC 1572
Decision Date: 09 December 2024

CaseChat Overview and Summary

The respondents, Haigh, sought a gross sum costs order for proceedings against the appellant, Haddad, following the dismissal of his appeal against a costs order made by an Associate Justice. The appeal was dismissed, and the respondents sought a gross sum costs order for the entire proceedings. The appeal centred on whether the costs of the proceedings giving rise to the appeal should be included in the gross sum costs order.

The court considered whether the appeal proceedings were effectively joined to the proceedings before the Associate Justice for the purpose of costs. It was noted that the appeal proceedings were not a continuation of the earlier proceedings but were separate and distinct. However, the appeal proceedings were considered ancillary to the primary proceedings, and the court found it appropriate to include the costs of the appeal in the gross sum costs order. The court emphasised the importance of proportionality in costs orders and the need to consider the overall fairness and reasonableness of the order.

The court concluded that it was appropriate to make a gross sum costs order for the entire proceedings, including the costs of the appeal. The appeal was dismissed, and the respondents were granted their application for a gross sum costs order. The court highlighted the importance of ensuring that costs orders reflect the true nature of the proceedings and the need to consider the overall fairness and proportionality of the order.

Orders