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Lahoud v Lahoud

Lahoud v Lahoud

Case [2011] NSWSC 1186 7 October 2011

Costs

Limitation Periods

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Lahoud v Lahoud [2011] NSWSC 1186
Hearing dates: 7 October 2011
Decision date: 07 October 2011
Jurisdiction: Equity Division
Before: Campbell JA
Decision:
Notice of Motion dismissed with costs

Catchwords: COSTS - indemnity costs - offer of compromise - Calderbank letter - whether unreasonable for the offeree not to accept the offer of compromise - long history of disputation between parties - whether ambiguities in the offer that made it not unreasonable to fail to accept the offer
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: Calderbank v Calderbank [1975] 3 WLR 586
Commonwealth of Australia v Gretin [2008] NSWCA 717
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Jones v Bradley (No 2) [2003] NSWCA 258
Joseph Lahoud v Victor Lahoud [2006] NSWSC 126
Lahoud v Lahoud [2011] NSWSC 994
Leichhardt Municipal Council v Green [2004] NSWCA 341
SMEC Testing Services v Campbelltown [2000] NSWCA 323
Category: Costs
Parties: Joseph Lahoud (Applicant)
Victor Lahoud (Respondent)
Representation: Counsel
I M Neil SC (Applicant)
S Philips (Respondent)
Solicitors
Verekers Lawyers (Applicant)
McLachlan Thorpe Partners (Respondent)

File Number(s): 2007/255809
Publication restriction: Nil
Decision under appeal

Jurisdiction:

9111

Judgment

CAMPBELL JA : On 10 March 2006 I made orders (" the Costs Orders "). They included the following provision for interest to be payable on certain costs: Joseph Lahoud v Victor Lahoud[2006] NSWSC 126.

"3. In this order:

X - equals the total amount of costs and disbursements which the Plaintiffs have paid or are liable to pay to their legal advisers in connection with these proceedings.

Y - equals the total amount of costs and disbursements allowed on assessment to the Plaintiffs in connection with these proceedings.

The Allowed Percentage equals ((Y/X) x 100)%

Order the Defendants to pay to the Plaintiffs interest on costs and disbursements, at the rates set out in Schedule 5 Uniform Civil Procedure Rules , on the Allowed Percentage of each amount of costs and disbursements actually paid by the Plaintiffs, from the date of payment by the Plaintiffs of each such amount of costs and disbursements until the first to occur of:

(a) such time as the Defendants have paid the costs due to the Plaintiffs under any order made in these proceedings, or

(b) any further order relating to interest on costs in these proceedings.

4. Reserve further consideration of whether interest on costs should continue to run":

I gave judgment in two notices of motion in this matter on 1 September 2011: Lahoud v Lahoud[2011] NSWSC 994. I will refer to that judgment as the September 2011 judgment. This judgment uses the same terminology as the September 2011 judgment.

At the time of delivering the September 2011 judgment I orally pronounced an order numbered (4).

"Order Victor Lahoud to pay 33% of the costs as agreed or assessed of Joseph Lahoud and Joseph Lahoud & Associates Pty Ltd…

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 Lahoud v Lahoud

Details

AGLC: Lahoud v Lahoud [2011] NSWSC 1186
Case: [2011] NSWSC 1186
Decision Date: 07 October 2011

CaseChat Overview and Summary

The case of Lahoud v Lahoud involves a dispute between the parties regarding indemnity costs, specifically whether it was unreasonable for the respondent not to accept a compromise offer made by the applicant. The matter was heard in the Family Court of Australia. The applicant, Lahoud, sought indemnity costs following a long-standing history of disputes between the parties. The respondent, also Lahoud, had made an offer of compromise via a Calderbank letter, which the applicant declined.

The court was required to determine whether it was unreasonable for the respondent not to accept the offer of compromise and whether there were ambiguities in the offer that justified the refusal to accept. The court examined the nature of the disputes between the parties and the specific terms of the compromise offer, including whether the offer contained sufficient clarity and certainty to warrant acceptance. The court also considered the history of disputes and the potential implications for future litigation between the parties.

The court found that the respondent's refusal to accept the compromise offer was not unreasonable, given the long history of disputation and the perceived ambiguities in the offer. The court held that there were significant uncertainties in the terms of the offer, which made it reasonable for the respondent not to accept the compromise. The court also emphasised the importance of considering the broader context of the disputes between the parties, including the potential for further litigation, in determining whether the refusal to accept the compromise offer was reasonable. The court ultimately concluded that the respondent's refusal to accept the compromise offer was not unreasonable in the circumstances.

No further orders were made by the court, as the primary issue regarding the reasonableness of the refusal to accept the compromise offer had been resolved. The court's decision highlights the importance of clarity and certainty in compromise offers, particularly in cases involving long-standing disputes between parties. The court also emphasised the need to consider the broader context of the disputes when assessing the reasonableness of a party's refusal to accept a compromise offer.

Orders