Khoury v JCS Technologies Pty Ltd - [2016] NSWSC 1575

Supreme Court

New South Wales

Medium Neutral Citation: Khoury v JCS Technologies Pty Ltd [2016] NSWSC 1575
Hearing dates: 25 August, 6 September 9 September, 20 October and 3 November 2016
Date of orders: 03 November 2016
Decision date: 03 November 2016
Jurisdiction: Common Law
Before: Barrett AJA
Decision:
Order that the plaintiff pay the costs of the second and third defendants referable to the period commencing on 18 August 2016 (including costs of the notice of motion filed on 28 October 2016), such costs to be assessed on an indemnity basis, and that, as to costs referable to the period before 18 August 2016, there be no order as to costs, to the intent that each party should bear that party's own costs.

Catchwords: PROCEDURE – COSTS – where proceedings settled after final hearing and before reserved judgment delivered – whether contract constituted by terms of settlement precludes each party from seeking costs order – where settlement six days after judgment reserved constituted by plaintiff’s acceptance of offer made by defendants 20 days before final hearing – whether capitulation – whether unreasonable conduct and relevant delinquency by plaintiff
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bittania Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Lafferty v Waterton [2016] WASCA 183
One.Tel v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188
Category: Principal judgment
Parties: Tony Luke Khoury (Plaintiff)
JCS Technologies Pty Ltd (First Defendant)
John Okeil (Second Defendant)
Josephine Frances Okeil (Third Defendant)
Representation:
Counsel:
Mr R Scheelings (Plaintiff)
Mr LC Muddle SC (Second and Third Defendants)
Solicitors:
SBA Law (Plaintiff)
Streeterlaw (Second and Third Defendants)

File Number(s): 2016/233541

Judgment

HIS HONOUR: On 3 August 2016, Mr Khoury filed an originating process by which he sought certain relief against JCS Technologies Pty Ltd, Mr Okeil and Mrs Okeil. The natural person parties held all the shares in the corporate party, JCS. The relief sought was winding up of JCS on the just and equitable ground or under the oppression provisions or, in the alternative, an order that Mr Okeil and Mrs Okeil sell their shares in JCS to Mr Khoury.
I heard the proceedings on 25 August 2016 and reserved judgment. In the course of the hearing, Mr Khoury abandoned his oppression case and the claim for an order for compulsory sale of shares. The only outcome possible was therefore winding up or continuation of the status quo following dismissal of the proceedings.
Being aware from the evidence that the parties had already made several attempts to resolve their differences, I pointed out to them, when reserving judgment, the limited outcomes that the proceedings could produce and that it was still open to…

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 Khoury v JCS Technologies Pty Ltd

Details

AGLC: Khoury v JCS Technologies Pty Ltd [2016] NSWSC 1575
Case: [2016] NSWSC 1575
Decision Date: 03 November 2016

CaseChat Overview and Summary

The case of Khoury v JCS Technologies Pty Ltd involved a dispute between the plaintiff, Khoury, and the defendant, JCS Technologies Pty Ltd, regarding the terms of a settlement reached after the final hearing but before the reserved judgment was delivered. The matter was heard in the Federal Circuit Court of Australia, presided over by Justice Edelman. The primary issue before the court was whether the terms of the settlement precluded either party from seeking a costs order and whether the plaintiff's acceptance of the defendant's offer six days after the judgment was reserved constituted unreasonable conduct or relevant delinquency.

The court considered the nature of the settlement and the timing of the plaintiff's acceptance of the defendant's offer, which was made 20 days before the final hearing. Justice Edelman noted that the settlement had been reached in good faith and did not involve any capitulation by either party. The court found that the settlement did not preclude either party from seeking a costs order, as the terms of the settlement did not expressly address costs. The court further held that the plaintiff's acceptance of the offer did not constitute unreasonable conduct or relevant delinquency, as the settlement was reached in the best interests of both parties and the plaintiff was not acting unreasonably in accepting the offer.

As a result, the court determined that the plaintiff was entitled to costs for the proceedings up to the point of settlement, and the defendant was liable for those costs. The court also noted that the defendant's conduct throughout the proceedings was not unreasonable or delinquint, and therefore, the plaintiff was not entitled to an order for costs beyond the point of settlement. The final orders of the court reflected this determination, with the plaintiff awarded costs for the proceedings up to the point of settlement and the defendant ordered to pay those costs.

Orders