Mahony v El Bayeh (No 2) - [2017] NSWSC 325

Supreme Court

New South Wales

Medium Neutral Citation: Mahony v El Bayeh (No 2) [2017] NSWSC 325
Hearing dates: 1 September, 19 October, 26 October and 2 November 2016
Date of orders: 30 March 2017
Decision date: 30 March 2017
Jurisdiction: Equity
Before: Robb J
Decision:
(1) First defendant to pay the plaintiff’s costs of the proceedings on the summons and amended summons on the indemnity basis; and
(2) First defendant to pay the plaintiff’s costs of the notice of motion for an order giving leave to file the cross claim on the ordinary basis.
Catchwords: Costs – Indemnity costs – Whether indemnity costs order should be made against defendant – Where defendant was a self-represented litigant with limited grasp of the English language – Where defendant failed to appear in court – Where defendant failed to challenge plaintiff’s evidence – Where defendant failed to comply with court orders.
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248
King Investment Solutions v Hussain [2005] NSWSC 1076
Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537
Category: Costs
Parties: John Francis Mahony (plaintiff)
Yousseff El Bayeh (first defendant)
Ishtar Painting Pty Limited (second defendant)
Intellect Constructions Pty Limited (third defendant)
Representation:
Counsel: L Reeves (plaintiff)
Solicitors: Mahony Law (plaintiff)
First defendant (self-represented)

File Number(s): 2016/147399
Publication restriction: None

Judgment

Introduction

On 2 November 2016, I delivered an ex tempore judgment on these proceedings. I made the orders sought by the plaintiff, Mr John Francis Mahony, in terms of paragraph 1 to 8 of the amended summons dated 26 October 2016, for the judicial sale of the property at 28 Huntingwood Drive, Huntingwood (Huntingwood Property). I then dismissed the cross claim by the first defendant, Mr Yousseff El Bayeh, filed 30 September 2016, on the basis that he failed to appear as required before the court. The present judgment is for the purpose of determining costs in the proceedings.
I made an order on 2 November 2016 for Mr El Bayeh to provide submissions on the issue of costs by 11 November 2016. Mr Mahony had previously provided short written submissions on 1 November 2016 to support his claim for costs on an indemnity basis. Mr El Bayeh made no submissions on costs.

History of the proceedings

As I have canvassed the history of proceedings in much detail in the ex tempore judgment earlier, I will only recount the salient procedural history here.
Mr El Bayeh was a former client of Mr Mahony’s and owed Mr Mahony legal costs and disbursements for work done over a period of time. Shortly put, on 20 May 2015, the parties entered into a deed by which, relevantly, Mr El Bayeh covenanted that he would use all reasonable endeavours to sell the Huntingwood Property to repay the agreed sum of $56,463 owning by a certain…

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 Mahony v El Bayeh (No 2)

Details

AGLC: Mahony v El Bayeh (No 2) [2017] NSWSC 325
Case: [2017] NSWSC 325
Decision Date: 30 March 2017

CaseChat Overview and Summary

The case of Mahony v El Bayeh (No 2) involves a dispute between the plaintiff, Mahony, and the defendant, El Bayeh, concerning an indemnity costs order. The matter was heard in the Supreme Court of Victoria. The central issue in this case was whether the defendant, who was self-represented and had limited English language skills, should be held liable for indemnity costs. This decision arose from the defendant's failure to appear in court, their neglect to challenge the plaintiff's evidence, and their disregard for the court's orders.

The legal issues the court needed to address included the appropriateness of an indemnity costs order against a self-represented litigant with language barriers and the circumstances under which such an order should be made. The court considered the principles established in previous cases, such as the need for a fair and just outcome, the conduct of the parties, and the specific circumstances of the case. The court had to balance the defendant's limited resources and language difficulties against their failure to engage with the proceedings in a meaningful way.

In reaching its decision, the court found that the defendant's conduct warranted an indemnity costs order. Despite the defendant's language difficulties and limited resources, their failure to appear in court, challenge the plaintiff's evidence, and comply with court orders demonstrated a significant lack of engagement with the proceedings. The court determined that these actions justified the imposition of indemnity costs against the defendant. The court's ruling emphasised the importance of parties complying with court orders and engaging with legal proceedings, regardless of their personal circumstances. The court made an order for indemnity costs against the defendant.

Orders