Islam v Australian Securities & Investments Commission

[2024] NSWSC 150

Supreme Court

New South Wales

Medium Neutral Citation:	Islam v Australian Securities & Investments Commission [2024] NSWSC 150
Hearing dates:	20 February 2024
Date of orders:	01 March 2024
Decision date:	01 March 2024
Jurisdiction:	Common Law
Before:	Harrison CJ at CL
Decision:	Order Mr Islam to pay the first and second defendant’s costs assessed as a gross sum of $11,711.50.
Catchwords:	COSTS – application for indemnity costs or alternatively a gross sum costs order – Offer of Compromise – costs summary – assessment of costs not warranted having regard to the overriding purpose
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 20.26
Cases Cited:	Islam vAustralian Securities & Investments Commission [2023] NSWSC 1188
Category:	Costs
Parties:	Md Rajibul Islam (Plaintiff) Australian Securities and Investments Commission (1st Defendant) Australian Taxation Office (2nd Defendant) Amit Sharma (3rd Defendant) Md Jobayer Al Rashid (4th Defendant) Shahanur F Chowdhury (5th Defendant) Maisha Samiha (6th Defendant) Afra Anjum Khan (7th defendant) Atif Anowar (8th Defendant) Md Jahangir Islam (9th Defendant) Mohammad Nurul Islam (10th Defendant) Md Shohel (11th Defendant) Nour Abbas (12th Defendant) Ishita Afzana Khan (13th Defendant) Fauzia Nigar (14th Defendant) Tejinder Singh Grewal (15th Defendant) Sultana Akter (16th Defendant) Md Nurul Huda (17th Defendant) Ridwan Rahman Khan Chowdhury (18th Defendant) Md Kamruzzaman (19th Defendant) Mahmud Hossain (20th Defendant) Raihan Karim (21st Defendant) NSW Fair Trading (22nd Defendant) Joydeep Chowdhury Pantha (23rd Defendant)
Representation:	Solicitors: Australian Government Solicitor (1st and 2nd Defendants) Macquarie Law Group (4th-7th, 13th and 14th Defendants) Carter Newell Lawyers (20th Defendant) Crown Solicitor’s Office (22nd Defendant)
File Number(s):	2023/152394
Publication restriction:	Nil

JUDGMENT

1. HIS HONOUR: On 6 October 2023, I dismissed these proceedings and awarded costs against Mr Islam: Islam vAustralian Securities & Investments Commission [2023] NSWSC 1188. The first and second defendants now ask for an order that the costs be paid on the ordinary basis up until 28 July 2023 and on an indemnity basis thereafter, or alternatively that I make a gross sum costs order. Mr Islam opposes this.

2. The first and second defendants move on the affidavits of Sean Behringer sworn on 29 September 2023 and 23 November 2023. Mr Behringer was not required for cross-examination.

3. On 28 July 2023, the first and second defendants sent Mr Islam an Offer of Compromise pursuant to UCPR 20.26 offering to resolve the matter upon the basis of judgment in favour of the first and second defendants with no order as to costs. The offer was expressed to be open for a period of 14 days. It was not accepted.

4. The letter containing the offer asserted that the summons filed by Mr Islam on 24 May 2023 did not disclose a reasonable cause of action, was an abuse of process, was frivolous and vexatious and caused prejudice to the defendants. Without repeating the matters in my earlier judgment, those contentions were made out.

5. In some cases an offer that effectively calls for the opposing party to capitulate might not be construed as a genuine offer to compromise the proceedings but instead a suggestion in terrorem that the opposing party should just capitulate. In the present case, I formed the view that Mr Islam’s contentions were utterly hopeless and were beyond revival in any form. In such a case it is difficult not to be sympathetic to an offer that relieves the opposing party of costs that have been unnecessarily incurred in responding to a claim that is wholly without merit.

6. There is in my view no reason in the circumstances of this case why the first and second defendants should not have its costs on an indemnity basis from 28 July 2023.

7. Should a gross sum costs order be made? Mr Behringer’s affidavit contains a detailed analysis and calculation of the costs claimed by the first and second defendants. A costs summary is included. Mr Behringer deposes to a belief that the amounts claimed are correct and in his opinion the costs summary is fair and accurate. The costs calculated on the ordinary basis up to 28 July 2023 and on an indemnity basis thereafter total $11,711.50.

8. Doing the best I can, I consider that the first and second defendants are entitled to a gross sum costs order in the amount claimed. In forming that view, I have taken account of the likely additional costs that would be incurred and time that would be wasted by requiring the parties to proceed to a formal assessment of costs. Such a course would be wholly disproportionate to the issues and amounts involved.

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Decision last updated: 01 March 2024