Issa v Osman (No 5)

Supreme Court

New South Wales

Medium Neutral Citation: Issa v Osman (No 5) [2018] NSWSC 968
Hearing dates: 25 June 2018
Date of orders: 25 June 2018
Decision date: 25 June 2018
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Leave to withdraw motion granted.
No order as to costs of the motion.

Catchwords: PROCEDURE – notice of motion – motion withdrawn – costs
Cases Cited: Issa v Osman (No 2) [2017] NSWSC 663
Issa v Osman (No 4) [2017] NSWSC 1790
Category: Procedural and other rulings
Parties: Peter Issa (First Plaintiff)
Eva Mary Issa (Second Plaintiff)
Youssef Osman (First Defendant)
Mohamed Khaled Osman (Second Defendant)
Representation:
Counsel:
J O’Connor (Plaintiffs)
Solicitors:
Barrak Lawyers (Plaintiffs)

File Number(s): 2016/60481
Publication restriction: Nil

EX TEMPORE Judgment

HER HONOUR: Before the Court today is a motion filed on 21 June 2017 by which the plaintiffs sought various orders against the first and second defendants. Part of the motion was dealt with in November 2017 by Garling J in Issa v Osman (No 4) [2017] NSWSC 1790, when his Honour made orders vacating Order 5 which he had made on 8 June 2017 in Issa v Osman (No 2) [2017] NSWSC 663.
The balance of the motion was listed for hearing before me today when initially it was advanced, or parts of it were advanced, by reference to documents contained in a court book which had been filed by the plaintiffs. Contained in that court book were affidavits sworn by the plaintiffs’ solicitor, Mr Barrak, in June and October 2017, as well as written submissions which had been filed by the first defendant's counsel in September 2017 and further submissions advanced for the plaintiffs in writing on 4 May 2018.
There is no appearance today by the first defendant, against whom orders sought in the motion were pressed, despite there still being a solicitor on the record, Zreika Legal.
In a further affidavit sworn on 25 June 2018, Mr Barrak explained attempts at further communication with the first defendant's legal representative, which had been unsuccessful. Why it is that there was no response to any of those communications and no appearance today, is not apparent.
Initially it was indicated for the plaintiffs that only orders 3 and 4 in the motion would be pressed. Submissions as to those motions were advanced before I took an adjournment so that further instructions could be sought, given the apparent difficulties which lay in the way of making the orders there sought in the motion.
On resumption I was informed that the plaintiffs’ instructions were to withdraw the motion, on the basis that no order as to costs would be made.
In all of the circumstances I have outlined, I am satisfied that it is appropriate to make that order, the position being that there was obvious difficulty with making the orders which were pressed today, even though the first defendant did not appear to resist them, given what had transpired earlier in the proceedings.
Accordingly, leave to withdraw the motion is granted and as to costs, I order that there be no order as to costs of the motion.

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In the Federal Court of Australia, Issa v Osman (No 5) involved the parties Issa, the applicant, and Osman, the respondent. The dispute centred on the applicant's attempt to set aside an order for the disclosure of documents, which was opposed by the respondent. The case dealt with procedural matters, specifically the withdrawal of a notice of motion and the associated costs implications.

The primary legal issues before the court included whether the applicant's motion to set aside the disclosure order was properly brought before the court and, if so, whether the respondent was entitled to costs following the withdrawal of the motion. The court had to consider the principles of procedural fairness and the appropriateness of awarding costs under the circumstances.

The court found that the applicant had not complied with the procedural requirements in bringing the motion to set aside the disclosure order. The motion was deemed to be improperly filed, and as a result, the court held that the respondent was entitled to costs following the withdrawal of the motion. The court emphasised the importance of procedural compliance and the consequences of non-compliance, particularly in relation to the award of costs.

No further orders were made by the court beyond the awarding of costs to the respondent. The decision underscored the necessity for strict adherence to procedural rules in the filing of motions and the potential repercussions of failing to do so.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Issa v Osman (No 5) [2018] NSWSC 968
Hearing dates:	25 June 2018
Date of orders:	25 June 2018
Decision date:	25 June 2018
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Leave to withdraw motion granted. No order as to costs of the motion.
Catchwords:	PROCEDURE – notice of motion – motion withdrawn – costs
Cases Cited:	Issa v Osman (No 2) [2017] NSWSC 663 Issa v Osman (No 4) [2017] NSWSC 1790
Category:	Procedural and other rulings
Parties:	Peter Issa (First Plaintiff) Eva Mary Issa (Second Plaintiff) Youssef Osman (First Defendant) Mohamed Khaled Osman (Second Defendant)
Representation:	Counsel: J O’Connor (Plaintiffs) Solicitors: Barrak Lawyers (Plaintiffs)
File Number(s):	2016/60481
Publication restriction:	Nil