Marhaba v Chen (No 2)

Case [2024] ACTSC 288


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Marhaba v Chen (No 2)

Citation: 

[2024] ACTSC 288

Hearing date:

On the papers

Decision Date: 

20 September 2024

Before:

McWilliam J

Decision: 

Pursuant to r 1725(3) of the Court Procedures Rules 2006, order 2 of the orders made on 26 July 2024 is varied to read as follows: The defendants are to pay 85% of the plaintiff’s costs.

Catchwords: 

PRACTICE AND PROCEDURE – COSTS – where plaintiff successful in personal injury claim – where judgment sum awarded was less than the jurisdictional limit of the Magistrates Court – application of r 1725 of the Court Procedures Rules 2006 (ACT) – where plaintiff’s claim was complex but quantum of claim exaggerated – alternative costs order made – offers of compromise made under the Rules – Calderbank offers – where offers not accepted and judgment less favourable to plaintiff – where period of acceptance of offers was 4 days – offers not open for reasonable period under the Rules – not unreasonable for plaintiff to reject offer in the circumstances

Legislation Cited: 

Court Procedures Act 2004 (ACT) s 5A

Court Procedures Rules 2006 (ACT) pt 2.10, rr 1002, 1011, 1721(1), 1725

Cases Cited: 

Anderson Group Pty Ltd v Tynan Motors (No 2) [2006] NSWCA 120; 67 NSWLR 706

Calderbank v Calderbank [1975] 1 All ER 333

Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8

Cressy v Miloriad (No 2) [2016] ACTSC 339; 317 FCR 267

De Gruchy v The Owners Units Plan no. 3989 (No 2) [2020] ACTSC 166

Dover Beach Pty Ltd v Geftine Pty Ltd [2008] VSCA 248; 21 VR 442

EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92

Evans Shire Council v Richardson (No 2) [2006] NSWCA 61

Financial Integrity Pty Ltd v Farmer (No 4) [2014] ACTSC 145

Gray v Richards (No 2) [2014] HCA 47; 89 ALJR 113

Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) VR 435

Hillman v Box (No 5) [2014] ACTSC 150

Kemp v Ryan [2011] ACTSC 42 at [18] and Vizovitis v Ryan (No 2) [2014] ACTSC 301

Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No. 2) [2008] NSWCA 85

Latoudis v Casey (1990) 170 CLR 534

Mareva Building Consultants v Zevon (No 2) [2012] ACTSC 24

Marhaba v Chen [2024] ACTSC 241

McLennan v Meyer Vandenberg (No 2) [2020] ACTCA 15

MiwaProperties Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344

O’Neil v Williams (costs) [2007] NSWSC 51

Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72

Pettiford v Whicker [2005] NSWCA 370

Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283

Re Williams; Smith v Thwaites (No 2) [2017] VSC 771

Summers v Repatriation Commission (No 2) [2015] FCAFC 64

Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1

Yogini v Eveille [2006] ACTSC 23

Parties: 

Rouba Marhaba…

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Marhaba v Chen (No 2) [2024] ACTSC 288
Case
[2024] ACTSC 288
Decision Date

CaseChat Overview and Summary

Marhaba v Chen (No 2) involved the plaintiff seeking to have the costs of a personal injury claim paid by the defendants. The original judgment awarded the plaintiff a sum less than the jurisdictional limit of the Magistrates Court. The court was tasked with determining the appropriate percentage of costs to be paid by the defendants under rule 1725 of the Court Procedures Rules 2006 (ACT). The plaintiff’s claim, while complex, had an exaggerated quantum, and despite the plaintiff's success, the final award was less favourable than a previous offer made by the defendants.

The legal issues before the court included the application of rule 1725 and the appropriateness of the alternative costs order, given the nature of the claim and the offers of compromise. The court considered whether the plaintiff had acted unreasonably in rejecting the defendants' offers and whether these offers were open for a reasonable period under the rules. The court found that the offers were not open for a reasonable period and it was not unreasonable for the plaintiff to reject the offers in the circumstances.

In its reasoning, the court noted the complexity of the claim and the exaggerated nature of the quantum. The court also found that the period within which the plaintiff could accept the offers was unreasonably short. Given these factors, the court varied the original order to reflect that the defendants were to pay 85% of the plaintiff's costs. This decision balanced the plaintiff's success with the need to consider the reasonableness of the costs awarded in light of the circumstances of the case.

Orders

Orders of the court

Pursuant to r 1725(3) of the Court Procedures Rules 2006, order 2 of the orders made on 26 July 2024 is varied to read as follows: The defendants are to pay 85% of the plaintiff’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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