Islam v Khan & Ors (No.2)

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…