Lahoud v Lahoud (No 2) - [2018] NSWSC 179

Supreme Court

New South Wales

Medium Neutral Citation: Lahoud v Lahoud (No 2) [2018] NSWSC 179
Hearing dates: 22 February 2018
Decision date: 22 February 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
• Each party apart from the sixth defendant to bear his or its own costs of both the summons and the cross-summons; no order as to the costs of today’s argument

Catchwords: COSTS – where a party refused a Calderbank offer and then failed to achieve a better result – no presumption in favour of indemnity costs – offer inviting capitulation with no real element of compromise – where parties engaged in interminable disputes as to costs with no regard to proportionality
Cases Cited: Jones v Bradley (No 2) 2003 NSWCA 258
Lahoud v Lahoud [2018] NSWSC 5
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Category: Costs
Parties: Victor Lahoud (first plaintiff)
Castle Constructions Pty Ltd (second plaintiff)
Solidare Pty Ltd (third plaintiff)
Joseph Lahoud (first defendant)
Joseph Lahoud & Associates Pty Ltd (second defendant)
Michael William Robinson (third defendant)
John Bartos (fourth defendant)
The Manager, Costs Assessment (fifth defendant)
Attorney General (sixth defendant)
Representation:
Counsel:
SJ Philips (plaintiffs)
R Tassell (first and second defendants)
Solicitors:
MT Partners (plaintiffs)
Pikes & Verekers Lawyers (first and second defendants)
Crown Solicitor’s Office (NSW) (fifth and sixth defendants)

File Number(s): 2015/361946
Publication restriction: None

Judgment

HER HONOUR: Mr Victor Lahoud and Mr Joseph Lahoud are brothers. Earlier this year I determined a summons and cross summons between them relating to the determination of the Costs Review Panel, dismissing both the summons and the cross summons, for the reasons stated in my judgment Lahoud v Lahoud [2018] NSWSC 5.
The precise orders made reflect the fact that, in each case, I granted leave to appeal on only one of a number of grounds; further, in each case, the appeal was dismissed on the ground in respect of which leave was granted. I otherwise refused leave to appeal on any of the grounds raised. At the conclusion of the judgment I indicated that, unless any party wished to be heard otherwise as to costs, the orders I proposed were that, leaving aside the costs of a third party, each of the brothers and his related entities should bear his or its own costs of the summons and the cross summons.
Perhaps predictably, having regard to the history recited in the primary judgment, one of the parties did wish to be heard otherwise. The application before the Court today is the application of Joseph Lahoud for an order that Victor Lahoud (or the Victor parties, as they have been referred to in the proceedings) pay the costs of the Joseph parties of the summons and the cross summons from 29 April 2016 on the indemnity basis.
The basis for the application is the fact that, on 14 April 2016, the Joseph parties sent the Victor parties a Calderbank letter. The letter is attached to the submissions in…

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 (No 2)

Details

AGLC: Lahoud v Lahoud (No 2) [2018] NSWSC 179
Case: [2018] NSWSC 179
Decision Date: 22 February 2018

CaseChat Overview and Summary

In the Family Court of Australia, the case of Lahoud v Lahoud (No 2) involves a dispute between the parties regarding the allocation of costs following a series of legal proceedings. The court was tasked with determining the appropriate costs to be awarded, particularly in light of a Calderbank offer that was rejected by one party, leading to an unsuccessful outcome. The legal issues before the court included whether there was a presumption in favour of indemnity costs, given the refusal of the offer, and whether the offer itself had any real element of compromise.

The court considered the nature of the Calderbank offer, which was described as an invitation to capitulate with no genuine compromise. The offer was made by the respondent, who subsequently failed to achieve a better result than what was proposed in the offer. The court noted that while there is no automatic presumption in favour of indemnity costs, the refusal of a genuine offer can influence the costs outcome. However, the court also emphasised the importance of proportionality in awarding costs, particularly in the context of parties engaging in prolonged and disproportionate disputes over costs.

The court concluded that the offer made by the respondent lacked any real element of compromise, and therefore, the refusal did not justify an indemnity costs order. The court further highlighted the ongoing and disproportionate nature of the disputes between the parties regarding costs. It was determined that the costs awarded should reflect the proportionality principle, considering the overall conduct of the proceedings. The court ultimately awarded costs in a manner that it deemed appropriate, taking into account the refusal of the offer and the proportionality of the costs disputes.

Orders