Moubarak v Le (No. 2)

[2019] NSWDC 170

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Moubarak v Le (No. 2) [2019] NSWDC 170
Hearing dates:	On the papers
Date of orders:	10 May 2019
Decision date:	10 May 2019
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 35.
Catchwords:	PRACTICE AND PROCEDURE – costs – application for costs variation – where Defendant succeeded in defeating significant claims for heads of damage - whether costs order should be proportionate to plaintiff’s monetary verdict.
Legislation Cited:	Civil Procedure Act 2005 (NSW) Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Bostik Australia Pty Ltd v Liddiard (No.2) [2009] NSWCA 304 Colak v Ghalloub (No.2) [2017] NSWDC 351 Gladio Pty Ltd v Buckworth (No.2) [2015] NSWSC 1462 Harrison v Schipp (2002) 54 NSWLR 738 McLennon v Antonios (No.2) [2014] NSWDC 38 Milich v Council of the City of Canterbury (No.3) [2012] NSWSC 1280 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No.2) [2014] NSWCA 425 New South Wales v Quirk [2012] NSWCA 216 O’Reilly v Western Sussex NHS Trust (No.7) [2015] NSWSC 233 Ohn v Walton (1995) 36 NSWLR 77 State of New South Wales v Stevens (2012) 82 NSWLR 106
Category:	Costs
Parties:	Mr Moubarak (Plaintiff) Mr English (First Defendant) Mr Le (Second Defendant)
Representation:	Counsel: Mr D-L Del Monte (Plaintiff) Mr B Wilson (First and Second Defendant)   Solicitors: Lionheart Lawyers (Plaintiff) Hall and Wilcox (First and Second Defendant)
File Number(s):	2017/256292
Publication restriction:	Nil

Judgment

Background

1. On 15 April 2019 Judgment in this matter was delivered: Moubarak v Le [2019] NSWDC 123 (the “Principal Judgment”). The Court determined that there be Judgment for the Plaintiff the sum of $6,640 and ordered the Defendants to pay the Plaintiff’s costs.

2. The Defendants now seek a variation of the costs order. Several alternative orders were proposed:

1. the Plaintiff pay the Defendant’s costs of the proceeding;

2. alternatively, each party pay their own costs of the proceedings; or

3. a proportional order be made pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) (the “Act”).

3. The Plaintiff resists this application and seeks to maintain the existing costs order.

4. For the purposes of this application, the parties both had the opportunity to serve evidence and submissions. After the Plaintiff served its material, the Defendant sought further opportunity to argue its case by contesting the Plaintiff’s arguments (either at a hearing or in further written material). I declined that request in circumstances where the quantum of the damages awarded was so small (having regard to s 60 of the Act) and the importance of finalising a small claim commenced over 18 months ago (s 56 of the Act). I note, also, that although I have summarised the Plaintiff’s argument, in evaluating his submissions, I have factored in the assumption that, in some cases at least, the Defendant may contest their accuracy or cogency. In the circumstances, the Defendants have had reasonable opportunity to submit their case on costs.

The Defendants’ submissions

5. The Defendants acknowledge that the ordinary…