Khattar v Khattar; Fayad v Khatter - [2022] NSWCA 189

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Khattar v Khattar; Fayad v Khatter [2022] NSWCA 189
Hearing dates: 19 September 2022
Date of orders: 21 September 2022
Decision date: 21 September 2022
Before: Gleeson JA
Decision:
2022/142224
(1)   The appellant to provide within 14 days security in the sum of $35,405 for the respondents’ costs of the appeal by payment of that amount into court.
(2)   The appeal be stayed until the appellant has complied with order 1 above.
(3)   The appellant to pay the respondents’ costs of the motion filed 22 August 2022.
(4)   Grant liberty to apply on two days’ notice in relation to any proposed alternative manner of provision of the security referred to in order 1 above.
2022/144444
(1)   The appellant to provide within 14 days security in the sum of $35,405 for the respondents’ costs of the appeal by payment of that amount into court.
(2)   The appeal be stayed until the appellant has complied with order 1 above.
(3)   The appellant to pay the respondents’ costs of the motion filed 22 August 2022.
(4)   Grant liberty to apply on two days’ notice in relation to any proposed alternative manner of provision of the security referred to in order 1 above.

Catchwords:
COSTS – Security for costs – special circumstances – whether grounds reasonably arguable – whether appellants impecunious – whether attempts at judgment enforcement frustrated by appellants – substantial risk respondents will not recover costs if successful – Uniform Civil Procedure Rules 2005 (NSW), r 51.50

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 100
Uniform Civil Procedure Rules 2005 (NSW), rr 38.1, 51.50

Cases Cited:
Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Khattar v Hills Shoppingtown Pty Ltd (subject to a deed of company arrangement) [2022] NSWSC 363
Pi v Zhou [2017] NSWCA 16
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
P S Chellaram & Co Ltd v China Ocean Shipping [1991] HCA 36; (1991) 102 ALR 321
Robinson Helicopters Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550
Starr-Diamond v Diamond [2013] NSWCA 7
Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240

Category: Procedural rulings
Parties:
2022/142224
Carol Lourdes Khattar (First applicant)
Georgia Khattar (Second applicant)
Alana Khattar (Third applicant)
Joseph Khattar (Respondent)
2022/144444
Carol Lourdes Khattar (First applicant)
Georgia Khattar (Second applicant)
Alana Khattar (Third applicant)
Maria Fayad (Respondent)
Representation:
Counsel:
P Knowles (Applicants)
M Condon SC (Respondent – Joseph Khattar)
J de la Hoyde (Sol) (Respondent – Maria Fayad)
Solicitors:
O’Loughlin Westhoff (Applicants)
Sage Solicitors (Respondent – Joseph Khattar)
Madison Marcus (Respondent – Maria Fayad)

File Number(s): 2022/142224; 2022/144444

Judgment

GLEESON JA: Application is made by Carol Khattar (Carol), Georgia Khattar (Georgia) and Alana Khattar (Alana), the respondents to two related appeals, that the respective appellants, Joseph Khattar (Joseph) and Maria Fayad (Maria), provide security for costs of each appeal. The total amount…

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.

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Details

Case: [2022] NSWCA 189
Decision Date: 21 September 2022

CaseChat Overview and Summary

In *Khattar v Khattar; Fayad v Khatter*, the New South Wales Court of Appeal considered an application for security for costs. The respondents sought an order requiring the appellant to provide security for their costs of the appeal, arguing that there were special circumstances justifying such an order.

The primary legal issue before the Court was whether the grounds of appeal were reasonably arguable, whether the appellant was impecunious, and whether attempts to enforce judgments had been frustrated by the appellant, thereby creating a substantial risk that the respondents would not recover their costs if successful. This involved an assessment of the appellant's financial position and the prospects of the appeal.

The Court, applying rule 51.50 of the *Uniform Civil Procedure Rules 2005 (NSW)*, found that the circumstances warranted an order for security for costs. Gleeson JA determined that the appellant's impecuniosity, coupled with the respondents' inability to recover costs if the appeal failed, constituted special circumstances.

Consequently, the Court ordered the appellant to provide security for the respondents' costs of the appeal in the sum of $35,405 within 14 days by payment into court. The appeal was stayed until compliance with this order, and the appellant was ordered to pay the respondents' costs of the motion. Liberty to apply was granted concerning alternative methods of providing security.

Orders

Orders of the court

2022/142224

(1) The appellant to provide within 14 days security in the sum of $35,405 for the respondents’ costs of the appeal by payment of that amount into court.

(2) The appeal be stayed until the appellant has complied with order 1 above.

(3) The appellant to pay the respondents’ costs of the motion filed 22 August 2022.

(4) Grant liberty to apply on two days’ notice in relation to any proposed alternative manner of provision of the security referred to in order 1 above.

2022/144444

(1) The appellant to provide within 14 days security in the sum of $35,405 for the respondents’ costs of the appeal by payment of that amount into court.

(2) The appeal be stayed until the appellant has complied with order 1 above.

(3) The appellant to pay the respondents’ costs of the motion filed 22 August 2022.

(4) Grant liberty to apply on two days’ notice in relation to any proposed alternative manner of provision of the security referred to in order 1 above.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Khattar v Khattar; Fayad v Khatter [2022] NSWCA 189
Hearing dates:	19 September 2022
Date of orders:	21 September 2022
Decision date:	21 September 2022
Before:	Gleeson JA
Decision:	2022/142224 (1) The appellant to provide within 14 days security in the sum of $35,405 for the respondents’ costs of the appeal by payment of that amount into court. (2) The appeal be stayed until the appellant has complied with order 1 above. (3) The appellant to pay the respondents’ costs of the motion filed 22 August 2022. (4) Grant liberty to apply on two days’ notice in relation to any proposed alternative manner of provision of the security referred to in order 1 above. 2022/144444 (1) The appellant to provide within 14 days security in the sum of $35,405 for the respondents’ costs of the appeal by payment of that amount into court. (2) The appeal be stayed until the appellant has complied with order 1 above. (3) The appellant to pay the respondents’ costs of the motion filed 22 August 2022. (4) Grant liberty to apply on two days’ notice in relation to any proposed alternative manner of provision of the security referred to in order 1 above.
Catchwords:	COSTS – Security for costs – special circumstances – whether grounds reasonably arguable – whether appellants impecunious – whether attempts at judgment enforcement frustrated by appellants – substantial risk respondents will not recover costs if successful – Uniform Civil Procedure Rules 2005 (NSW), r 51.50
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 100 Uniform Civil Procedure Rules 2005 (NSW), rr 38.1, 51.50
Cases Cited:	Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Khattar v Hills Shoppingtown Pty Ltd (subject to a deed of company arrangement) [2022] NSWSC 363 Pi v Zhou [2017] NSWCA 16 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 P S Chellaram & Co Ltd v China Ocean Shipping [1991] HCA 36; (1991) 102 ALR 321 Robinson Helicopters Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 Starr-Diamond v Diamond [2013] NSWCA 7 Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240
Category:	Procedural rulings
Parties:	2022/142224 Carol Lourdes Khattar (First applicant) Georgia Khattar (Second applicant) Alana Khattar (Third applicant) Joseph Khattar (Respondent) 2022/144444 Carol Lourdes Khattar (First applicant) Georgia Khattar (Second applicant) Alana Khattar (Third applicant) Maria Fayad (Respondent)
Representation:	Counsel: P Knowles (Applicants) M Condon SC (Respondent – Joseph Khattar) J de la Hoyde (Sol) (Respondent – Maria Fayad) Solicitors: O’Loughlin Westhoff (Applicants) Sage Solicitors (Respondent – Joseph Khattar) Madison Marcus (Respondent – Maria Fayad)
File Number(s):	2022/142224; 2022/144444