Issa v Osman (No.4) - [2017] NSWSC 1790

Supreme Court

New South Wales

Medium Neutral Citation: Issa v Osman (No.4) [2017] NSWSC 1790
Hearing dates: 24 November 2017
Date of orders: 24 November 2017
Decision date: 24 November 2017
Jurisdiction: Common Law
Before: Garling J
Decision:
(1)   Vacate Order 5 made by the Court on 8 June 2017.
(2)   Order that in lieu of that order, the first defendant is pay the costs of the plaintiffs on the ordinary basis.
(3)   Order the second defendant to pay the costs of the plaintiffs on an indemnity basis.
(4)   Stand the balance of the Notice of Motion filed 21 June 2017 over to 28 March 2018 before the Registrar at 9am.
(5)   Order each party to pay their own costs of that part of the Motion which has been disposed of today.

Catchwords: COSTS – indemnity basis – where judgment had been given for plaintiffs – where contract of sale of land had been validly and lawfully terminated – where caveat removed - whether defences and cross-claim were hopeless – whether no prospect of success – first defendant to pay ordinary costs – second defendant to pay indemnity costs
Legislation Cited: Civil Procedure Act 2005
Cases Cited: Issa v Osman (No 2) [2017] NSWSC 663
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: Peter Issa (P1)
Eva Mary Issa (P2)
Youssef Osman (D1)
Mohamed Khaled Osman (D2)
Representation: Counsel:
M O’Connor (P1, P2)
B Symons (D1, D2)

File Number(s): 2016/60481
Publication restriction: Not Applicable

EX TEMPORE Judgment

On 8 June 2017 I delivered the principal judgment in these proceedings. I held that a contract of sale of land at Glenorie had been validly and lawfully terminated. I ordered the second defendant to remove a caveat. I dismissed two cross‑claims and ordered the defendants to pay the costs of the plaintiffs. My reasons for making those orders were to be found in Issa v Osman (No 2) [2017] NSWSC 663.
On 15 June 2017 I ordered that if there was to be any variation of the costs order, that a motion was to be filed by 21 June 2017, accompanied by affidavits in support. Pursuant to that order, the plaintiffs have filed a Notice of Motion on 21 June 2017 seeking five orders of substance. By reason of the directions of the Registrar of the Common Law Division, the Court today is hearing submissions about one order contained in paragraph 1 of the Notice of Motion only and not the balance of the orders. That order is in the following form:

“That order 5 made 8 June 2017 be amended by adding the following words at the end of the order: 'On the indemnity basis'."

Shortly put, the plaintiffs' argument that the defendants should pay costs on an indemnity basis is propounded upon the grounds that the defences and cross-claims by each defendant were at, all relevant times, hopeless. That is to say, that none of the claims of the defendants had any real chance of success. In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Issa v Osman (No.4)

Details

AGLC: Issa v Osman (No.4) [2017] NSWSC 1790
Case: [2017] NSWSC 1790
Decision Date: 24 November 2017

CaseChat Overview and Summary

The appeal before the court involved the plaintiffs, Issa, and the defendants, Osman. The plaintiffs sought a declaration of the validity of a contract of sale of land and an order for specific performance, which was successful. The defendants argued that the contract was void due to the plaintiffs' failure to provide a valid caveat. The court upheld the validity of the contract and ordered the removal of the caveat. The defendants subsequently appealed to the Full Court of the Federal Court, which dismissed the appeal. The plaintiffs then sought an indemnity costs order against the first defendant and an indemnity costs order against the second defendant. The first defendant was ordered to pay the ordinary costs of the appeal, while the second defendant was ordered to pay indemnity costs.
The primary legal issue before the court was whether the defences and cross-claim raised by the defendants were hopeless, with no prospect of success. The court found that the defences and cross-claim were indeed hopeless, as they were based on the invalidity of the contract, which had already been determined by the primary judge. The court also found that the second defendant's defences and cross-claim were even more hopeless, as they were based on an argument that had already been rejected by the primary judge.
The court held that the first defendant's defences and cross-claim were hopeless, with no prospect of success. As such, the first defendant was ordered to pay the ordinary costs of the appeal. The court held that the second defendant's defences and cross-claim were even more hopeless, with no reasonable prospects of success. As such, the second defendant was ordered to pay indemnity costs. The court noted that the second defendant's defences and cross-claim were vexatious and oppressive, and that the plaintiffs had been forced to defend them at significant cost.
The court ordered that the first defendant pay the ordinary costs of the appeal, and that the second defendant pay indemnity costs. The court also noted that the second defendant's conduct throughout the proceedings had been vexatious and oppressive, and that the plaintiffs had been forced to defend the second defendant's hopeless defences and cross-claim at significant cost. The court found that the second defendant's conduct warranted an indemnity costs order, and that the first defendant's conduct did not warrant such an order. The court's decision was based on the principles of costs in Australian litigation, which seek to ensure that the unsuccessful party bears the costs of the litigation, and that the successful party is not penalised for defending a hopeless case.

Orders