Islam v Ratul (No 2)

[2024] NSWSC 41

Supreme Court

New South Wales

Medium Neutral Citation:

Islam v Ratul (No 2) [2024] NSWSC 41

Hearing dates:

In Chambers – on the papers

Date of orders:

2 February 2024

Decision date:

02 February 2024

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

Amend order 2 pronounced on 21 December 2023 to read as follows:

“(2)    The plaintiffs are to pay the defendants costs of the proceedings on an indemnity basis.”

Catchwords:

COSTS — indemnity costs - civil procedure – abuse of process – relitigating claims of virtually same substance twice rejected by courts – “relevant delinquency” - successful parties’ invitation to discontinue proceedings prior to judgment refused - failure to lodge submissions against adverse indemnity costs order – special order for indemnity costs awarded

Cases Cited:

Australian Real Estate Relations Pty Ltd (in liquidation) v Farha Diba [2023] NSWSC 1619

Bale v Kimberley Developments Pty Ltd (No 2) [2022] NSWSC 1009

Ekes v Commonwealth Bank of Australia [2014] NSWCA 336; (2014) 313 ALR 665.

Islam v Ratul [2023] NSWSC 1625

Islam v Ratul (District Court (NSW), Andronos SC DCJ, 31 May 2023, unrep)

Moore v Inglis (1976) 50 ALJR 589

Ratul v Islam; in the matter of Australian Real Estate Relation Pty Ltd [2023] NSWSC 78

Category:

Costs

Parties:

MD Rajibul Islam (First Plaintiff)
Mortgage Plus Australia Pty Ltd (Second Plaintiff)
Abu Ratul (First Defendant)
Expert Finance Pty ltd (Second Defendant)

Representation:

Counsel:
MD Rajibul Islam (First Plaintiff) (self-represented)
R Perla (First and Second Defendant)

Solicitors:
Mitry Lawyers

File Number(s):

2023/80544

JUDGMENT

1. On 21 December 2023 I gave judgment summarily dismissing these proceedings and ordering the plaintiffs to pay the defendants’ costs of the proceedings: [2023] NSWSC 1625 (“Judgment”). I reserved liberty allowing a period of 14 days for any application for a special order for costs to be made by written submission to be dealt with in chambers. I allowed a further period of 14 days for the lodgement of responding written submissions if the special order is opposed.

2. By written submission dated 22 December 2023 the defendants by their counsel, Mr R Perla, make application for an order that the plaintiffs pay their costs on an indemnity basis. In the alternative, they seek a variation of my order from 19 April 2023 ordering costs on an indemnity basis in the light of the defendants’ letter of 11 April 2023 inviting the plaintiffs to discontinue the proceedings: Annexure “E”, affidavit Emma Brianne Watt affirmed 5 May 2023; Judgment at [4].

3. In my Judgment (see also Australian Real Estate Relation Pty Ltd (in liquidation) v Farha Diba [2023] NSWSC 1619), I accepted each of the arguments advanced and for the reasons given, I found that any entitlement to recovery for breach of a duty owed to a company by a director (whatever its basis) did not found an actionable claim for damages by the shareholders: Ekes v Commonwealth Bank of Australia [2014] NSWCA 336; (2014) 313 ALR 665. But essentially I found that the causes of action sought to be propounded in the Statement of Claim so far as they were identifiable were substantially the same as those Mr Islam unsuccessfully sought to ventilate before Black J in the Equity Division in Ratul v Islam; in the matter of Australian Real Estate Relation Pty Ltd [2023] NSWSC 78 and also before his Honour Judge Andronos SC in the District Court in Islam v Ratul, unreported 31 May 2023. For that reason, the proceedings were an abuse of process: Moore v Inglis (1976) 50 ALJR 589.

4. I record that despite my orders of 21 December 2023, and the defendants providing notice of their application for an order for indemnity costs, neither plaintiff has sought to file any submissions in opposition, which are now long overdue.

5. In his submissions, Mr Perla has referred me to Bale v Kimberley Developments Pty Ltd (No 2) [2022] NSWSC 1009 where Ward CJ in Eq (as the President then was) discussed the relevant authorities and stated the governing principles at [44] – [45]. It is unnecessary for me to go over the same ground. Given my finding that the present proceedings were an abuse of process by seeking to re-ventilate claims that had already been twice rejected by courts competent to deal with them, I am satisfied both that the conduct of the plaintiffs in bringing the proceedings is plainly unreasonable and amounts to “relevant delinquency” in persisting with claims which had already been determined authoritatively against them.

6. In the circumstances, under the exercise of my discretion, I consider it appropriate to amend order 2 pronounced on 21 December 2023 to read as follows:

7. “(2)    The plaintiffs are to pay the defendants costs of the proceedings on an indemnity basis.” (My emphasis)

**********