Islam v Khan & Ors (No.2)

[2023] NSWDC 509

District Court

New South Wales

Medium Neutral Citation:

Islam v Khan & Ors (No.2) [2023] NSWDC 509

Hearing dates:

On the Papers

Date of orders:

22 November 2023

Decision date:

22 November 2023

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

Following paragraph 19

Catchwords:

COSTS – application for order for indemnity costs

Legislation Cited:

Uniform Civil Procedure Rules 2005, Part 14, r 13.4, 36.15, 36.16, 42.1

Cases Cited:

Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No.2) [2009] NSWCA 12

Islam v Khan & Ors [2023] NSWDC 478

Category:

Costs

Parties:

Md Rajibul Islam (plaintiff/respondent)
Fahim Khan (first defendant/applicant)
Matthew Lawry (second defendant/applicant)
Ugur Nedim (former third defendant)

Representation:

Solicitors:
Berrigan Doube Lawyers for the first, second and former third defendant

File Number(s):

2023/162752

Publication restriction:

Nil

JUDGMENT

1. On 10 November 2023 the Court ordered that the plaintiff’s summons be struck out and dismissed the proceeding[1] . I reserved the question of costs and made directions for the (successful) defendants to serve submissions in support of any application they brought for indemnity costs, and a timetable was set for the parties to make submissions.

   1. Islam & Ors v Khan & Ors [2023] NSWDC 478

The application for indemnity costs

2. On 15 November 2023, Mr Garan, the solicitor for these defendants, applied for order for the plaintiff to pay costs in a fixed sum on an indemnity basis in the amount of $13,982, or alternatively on the ordinary basis.

3. The gist of the application is that in many respects, Mr Islam’s conduct throughout the life of the proceeding was so unreasonable as to amount to a delinquency which justifies the imposition of an order for indemnity costs. Those respects were:

1. Mr Islam’s failure to comply with a Court order on 1 June 2023 that he file a statement of claim;

2. Mr Islam’s failure to attend a directions hearing on 22 June 2023

3. Mr Islam’s failure to comply with a Court order on 5 October 2023 that he file a statement of claim

4. deficiencies in documents that Mr Islam did send to the Registry;

5. Mr Islam’s case being ‘hopeless’ for non-compliance with the requirements in Part 14 for originating process.

4. The first, second and third defendants (as ‘applicants’) cited well-known authority for the view that a party should pay its adversary’s costs when it appears that, properly advised, the party should have known that it had no chance of success[2] . The applicants also cited other proceedings that Mr Islam had commenced in the Supreme Court of New South Wales, which I had referred to in a judgment I delivered on 10 November 2023[3] . This circumstance, the applicants contend, should have indicated to Mr Islam that his case had no prospects of success for various reasons which can be said to commonly indicate that he was required, on many occasions, to file a pleading compliant with Part 14 of the Uniform Civil Procedure Rules 2005 (NSW)(‘UCPR’).

   2. Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No.2) [2009] NSWCA 12

   3. Islam v Khan & Ors [2023] NSWDC 478 at [63]-[64]

5. Mr Garan submitted that costs should be ordered to pay the first, second and third defendants’ costs in a fixed sum of $13,982.

Mr Islam’s opposition

6. Mr Islam was given the opportunity to respond to these submissions. By his email to my Associate dated 21 November 2023 (sent at 1:37pm), and copied to Mr Garan, the solicitor for the first, second and third defendants, Mr Islam emailed:

1. a long covering email;

2. 8 pages of written submissions;

3. Two amended statements of claim filed in the Supreme Court of New South Wales (bearing proceedings numbered 2023/279531 and 2023/275612); and

4. a draft originating process with a signed supporting affidavit and (approximately 350 pages of annexures or exhibits to the affidavit) apparently for intended use in the Federal Court.

Determination

7. I will address Mr Islam’s opposition first.

8. I understand that Mr Islam’s position is not only to oppose the application for indemnity costs, but to oppose any order for costs against him at all.

9. The starting point is of course, that costs follow the event (UCPR, r 42.1). In this regard, the ‘event’ was the applicants’ motion to dismiss or strike out the originating process. That application succeeded.

10. The material that Mr Islam supplied under cover of his email of 21 November 2023 is irrelevant. The actual process in the Supreme Court and the proposed originating process in the Federal Court concern different parties to the applicants in this proceeding and concern different complaints. The circumstance conveyed in his submissions that Mr Islam wishes to continue his “legal odyssey” against those different parties provides no reason not to award the costs of the applicants’ motion in this proceeding.

11. I will now address the applicants’ application for indemnity costs.

12. The applicants did not, in my view, pay sufficient heed to indications in the reasons for judgment on 10 November 2023. On a minor level, the applicants neglect what I said at paragraph 83, to the effect that no costs should be awarded in relation to the directions hearing on 22 June 2023.

13. More significantly, the basis for dismissal of the proceeding was not a summary disposal under r 13.4, even though there were serial deficiencies and omissions in the way that Mr Islam had articulated his complaints; which were exposed in my reasons on 10 November 2023. The principle relating to indemnity costs orders being awarded against parties that run ‘hopeless’ cases is thus inapposite. Rather there was continual and, indeed, endemic non-compliance with pleading rules culminating in the Court’s view that Mr Islam should not receive further opportunity to re-plead.

14. Further still, although it is true that the period of time to determine the application was protracted, that was, as my reasons of 10 November indicate, partly a function of the delay in Mr Islam obtaining the pro bono legal representation which he did not receive until late October 2023, for which delay he was not responsible. After he received that legal advice although Mr Islam did not comply with the direction to file a statement of claim, the Amended Summons he unsuccessfully applied to file served as a functional proxy for considering the applicants’ application for summary dismissal.

15. Fundamentally, it was still Mr Islam’s inability to ‘plead’ his multiple actions in the procedurally fair way that would put the applicants on notice of the cases that they had to meet, that led to the result reflected in my reasons, including my determination that he not be given further opportunity. The fact that he did not comply with the Court rules for pleading does not, however, give rise to an entitlement in the successful party to indemnity costs per se. Given Mr Islam’s self-representation, it is not atypical for parties in his position to fail to adhere to procedural rules, such as contained in Part 14 of the UCPR. But if represented parties could apply for indemnity costs on the basis of self-represented litigants not complying with procedural rules, I expect courts would be inundated with costs applications in the event that self-represented litigants fail in their claims.

16. It is also true that the third defendant was purportedly removed from the proceeding through the ‘Amended Summons’ that was filed in the Registry. This, to recall, occurred after the time that Mr Islam received legal advice. But the discontinuance or withdrawal of a claim against a defendant does not, of itself, indicate an entitlement to indemnity costs.

17. Costs should be awarded to the applicants on the ordinary basis.

18. The last aspect of the applicants’ submissions seeks an order for a gross lump sum costs order. But beyond the submission, no evidence was adduced by the applicants to support such an order, such as time sheets or costs agreements, that would enable the Court, even on a broad-brush approach, to form a view about the costs incurred. The submission is rejected.

Orders

19. Save as to the costs of the directions hearing of 22 June 2023, the plaintiff is to pay the first, second and third defendants’ of the proceeding on the ordinary basis, as agreed or assessed.

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Endnotes

Decision last updated: 22 November 2023