Islam v Javam

[2018] NSWSC 1592

Supreme Court

New South Wales

Medium Neutral Citation:	Islam v Javam [2018] NSWSC 1592
Hearing dates:	22 October 2018
Date of orders:	22 October 2018
Decision date:	22 October 2018
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1)   I reserve the question of the costs of the plaintiff’s appeal to this Court. (2)   I direct the parties, if so advised, to provide written submissions on that issue to my Associate within 21 days following the publication of reasons for judgment in the Tribunal or settlement, whichever applies. (3)   I grant liberty to apply on 7 days’ notice to the Court and to the other side.
Catchwords:	COSTS – costs reserved
Cases Cited:	Islam v Javam [2018] NSWSC 1430
Category:	Costs
Parties:	Sirajul Islam (Plaintiff) Abdollah Javam (Defendant)
Representation:	Solicitors: Somerville Legal (Plaintiff) Doyles Construction Lawyers (Defendant)
File Number(s):	2018/145618
Publication restriction:	Nil

Judgment

1. HIS HONOUR: I published reasons for judgment in this matter on 21 September 2018: see Islam v Javam [2018] NSWSC 1430. I directed that the proceedings be listed before me for directions on 22 October 2018.

2. The parties are now agreed that the dispute in the Tribunal should continue to be heard there upon the basis that the plaintiff “gets credit for his $20,000 against whatever is the outcome of that contest”. It will be apparent from my earlier reasons that I consider that approach to be an appropriate one in the circumstances.

3. The question of costs remains. Mr Hemsworth on behalf of the plaintiff submits that this issue should await the outcome in the Tribunal as the result there will or might helpfully inform my assessment of the question of who should pay the costs of the proceedings in this Court. Inherent in that submission is the proposition that I have not finally dealt with the plaintiff’s application and on one view may ultimately not be required to do so. Mr Doyle on behalf of the defendant submits on the contrary that the plaintiff was unsuccessful in this Court and that costs should follow that event. That submission proceeds upon the basis that I have effectively decided the plaintiff’s motion unfavourably to him, in the sense that I did not grant the relief claimed, and that costs should follow the event.

4. At [12] and [13] of my earlier decision I said the following:

“[12] Having regard to all these matters, it seems to me that the preferable and obvious course is for the present proceedings before me to remain on foot but on hold while the proceedings in the Tribunal continue to finality there. However, as the plaintiff’s appeal to this Court is presently framed, I doubt that I have the power to make an order to that effect. If common sense is to prevail, the parties acting reasonably could be expected to agree to return to the Tribunal and litigate their dispute under their building contract, safe in the knowledge that the plaintiff gets credit for his $20,000 against whatever is the outcome of that contest. The proceedings before me can be revived later should the need arise. I would like to be advised of the parties’ attitude to this suggestion in due course.

[13] If agreement about this cannot be reached, I will proceed to determine the plaintiff’s appeal. In the event that that becomes necessary, I will also require the solicitors for both parties to file an affidavit setting out the costs incurred by each of them since the matter first commenced in the Local Court in March 2017, together with an estimate of the costs incurred in litigating this appeal before me, as well as an estimate of the costs likely to be incurred by each party if the matter were returned for determination in either the Local Court or the Tribunal. I will also require an affidavit from a principal of the respective firms of solicitors who act for the plaintiff and the defendant indicating that they have drawn the attention of their clients to these reasons for judgment and to the calculations and assessments of the past and anticipated future costs to which I have just referred.”

5. It will be apparent that I have not yet finally determined the plaintiff’s appeal to this Court. Having regard to the agreement that the parties have sensibly reached, it seems unlikely that it will be necessary to do so. I accept that Mr Doyle wishes to contend that the plaintiff’s appeal was both ill-conceived and unnecessary, in particular having regard to certain correspondence passing between the parties, as well as being disproportionate to the amount in contest. It is not appropriate at this stage that I comment further upon these suggestions.

6. In my view, it is preferable to deal with the question of the costs in this Court when the outcome in the Tribunal is known. That is so for a number of reasons. One of those reasons is that any decision by me on the question of costs in this Court could arguably limit or even foreclose the possibility of a settlement of the Tribunal dispute by narrowing the scope of matters that the parties might take into account in negotiations in that respect.

7. I will therefore make the following orders:

1. I reserve the question of the costs of the plaintiff’s appeal to this Court.

2. I direct the parties, if so advised, to provide written submissions on that issue to my Associate within 21 days following the publication of reasons for judgment in the Tribunal or settlement, whichever applies.

3. I grant liberty to apply on 7 days’ notice to the Court and to the other side.

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Decision last updated: 22 October 2018