Kohkanzada v Amiri (No 2)

[2024] NSWSC 704

Supreme Court

New South Wales

Medium Neutral Citation:

Kohkanzada v Amiri (No 2) [2024] NSWSC 704

Hearing dates:

28, 29 May 2024

Date of orders:

29 May 2024

Decision date:

29 May 2024

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) Order 3 made on 1 May 2024 is to be varied as follows:

(a) The plaintiff is to pay the second defendant’s costs as follows:

(i) up to and including 14 April 2018 on an ordinary basis, and

(ii) from 15 April 2018 on an indemnity basis.

(2) The plaintiff is to pay the first defendant’s costs for the period when the first defendant was represented by solicitors from the date of the filing of her defence on 20 March 2018 until 21 July 2020.

(3) I decline to make any order pursuant to the Suitors’ Fund Act 1951 (NSW).

Catchwords:

COSTS – variation of costs order – application for indemnity costs by second defendant – second defendant seeks an order under s 6A of the Suitors’ Fund Act 1951 (NSW) – whether the fact that hearing date not reached entitles second defendant to such an order – first defendant seeks costs for period in which she was represented by solicitors

Legislation Cited:

Suitors’ Fund Act1951 (NSW), s 6A

Cases Cited:

Calderbank v Calderbank [1975] 3 All ER 333

Category:

Costs

Parties:

Abdul Waris Kohkanzada (Plaintiff)
Neelab Amiri (First Defendant)
Mustafa Amiri (Second Defendant)

Representation:

Solicitors:
Adams & Partners (Second Defendant)

File Number(s):

2018/00036140

Publication restriction:

Nil

EX TEMPORE JUDGMENT (REVISED)

1. On 1 May 2024, I entered judgment for the first and second defendants against the plaintiff. I ordered that the plaintiff pay the second defendant’s costs. As the first defendant was unrepresented, I made no order for costs in her favour.

2. The matter came before me on 28 May 2024, pursuant to a motion filed on behalf of the second defendant, seeking a variation of those cost orders. In particular, the second defendant sought an order for indemnity costs from the date on which an offer was made to the plaintiff. Included in the orders sought in the motion was an order for costs in favour of the first defendant.

3. On 28 May 2024, Mr Ti, solicitor for the second defendant, appeared. Although I delivered an ex tempore judgment at that time, unfortunately the judgment was not recorded. I thus re-listed the matter for today, 29 May 2024, for the purposes of re-delivering the ex tempore judgment. On this occasion, Ms Amiri, the first defendant, appears, and Mr Ti again appears for the second defendant.

4. Ms Amiri did not appear yesterday on 28 May 2024. Today she appears seeking an order for costs for the period when she retained solicitors. As Mr Ti points out, he made reference to that in his affidavit dated 14 May 2024. I accept that during the period subsequent to the commencement of the proceedings and up until 21 July 2020, the first defendant was represented by Michael Vassili Lawyers. Those solicitors filed a Notice of Ceasing to Act on 21 July 2020. The first defendant thus seeks an order for costs for that period.

5. The plaintiff did not appear on 28 May 2024 and does not appear today. The plaintiff was notified of yesterday’s hearing but declined to attend. Following yesterday’s hearing, my chambers contacted him again. In response to the Court’s notification to him, the plaintiff indicated that he would not be appearing, and he would not be opposing any further cost applications. He is thus aware of these applications and has chosen not to attend.

6. The second defendant made a number of attempts to resolve this matter, commencing with a letter dated 16 March 2018, which purported to explain why the second defendant thought he would win, and offered to the plaintiff that the plaintiff discontinue the proceedings and pay an amount on account of the second defendant’s costs.

7. That was followed by a further offer dated 28 March 2018, pursuant to which the second defendant offered that the plaintiff discontinue the proceedings and each party pay its own costs.

8. Thereafter, the second defendant made a number of other offers, including an Offer of Compromise on 5 December 2022, agreeing to pay the sum of $10,000 to the plaintiff; a further Calderbank offer on 1 December 2023; and a further offer on 6 February 2024.

9. Having succeeded in the proceedings, the second defendant has done better than each of the offers. However, I am not satisfied that the first offer of 16 March 2018 comprised any real compromise but I am satisfied that the offer of 28 March 2018 was a valid offer in accordance with the principles set out in Calderbank v Calderbank [1975] 3 All ER 333. This offer was put after the lengthy letter from the second defendant explaining the second defendant’s case, and why the second defendant maintained the plaintiff would not succeed.

10. In all these circumstances, I am satisfied that the second defendant is entitled to indemnity costs from 28 March 2018. I am also satisfied that the first defendant is entitled to an order for costs in her favour, in respect of the period that she retained solicitors. I understand that she has paid a significant sum to those solicitors. I do not know why they ceased to act but I accept that they represented her in these proceedings for the period up to 21 July 2020.

11. The first defendant also seeks an order under the Suitors’ Fund Act1951 (NSW). Pursuant to s 6A(1)(c) of the Suitors’ Fund Act, the first defendant seeks an order arising from the vacation of the hearing set down on 26 April 2022. Unfortunately, this matter has a long chronology, with the 26 April 2022 hearing being vacated on 21 April 2022, the 14 November 2022 hearing not being reached, and the 1 June 2023 hearing vacated on 29 May 2023. Mr Ti is seeking an order under the Suitors’ Fund Act, in respect of the hearing date that was not reached on 14 November 2022.

12. I have regard to s 6A(1)(c) of the Suitors’ Fund Act but I am not satisfied that that provision entitles the second defendant to an order for costs as sought. Unfortunately, although rarely these days, from time to time matters are not reached or adjourned for various reasons.

13. In my view, the fact that the matter was not reached or adjourned is not a basis on which an order should be made under the Suitors’ Fund Act. I thus decline to make the order sought by the plaintiff.

14. In all the circumstances, I make the following orders:

1. Order 3 made on 1 May 2024 is to be varied as follows:

1. The plaintiff is to pay the second defendant’s costs as follows:

1. up to and including 14 April 2018 on an ordinary basis, and

2. from 15 April 2018 on an indemnity basis.

2. The plaintiff is to pay the first defendant’s costs for the period when the first defendant was represented by solicitors from the date of the filing of her defence on 20 March 2018 until 21 July 2020.

3. I decline to make an order pursuant to the Suitors’ Fund Act 1951 (NSW).

**********

Decision last updated: 11 June 2024