Moustach Pty Ltd v Eddie Takchi - [2015] NSWSC 2080

Supreme Court

New South Wales

Medium Neutral Citation: Moustach Pty Ltd v Eddie Takchi [2015] NSWSC 2080
Hearing dates: 24 November 2015
Date of orders: 24 November 2015
Decision date: 24 November 2015
Jurisdiction: Equity - Corporations List
Before: Brereton J
Decision:
Costs order made.

Catchwords: PROCEDURE – costs – indemnity costs – where costs order already made but indemnity costs not sought at time – whether application can be made after conclusion of proceedings – where order not yet subject of costs assessment – effect of (NSW) Uniform Civil Procedure Rules 2005, r 42.2 – whether r 42.2 varies order already made or establishes basis of liability without affecting liability under order – operation of r 42.2 in empowering Court to make or reconsider costs orders before referral for assessment – reluctance of Court to entertain application altering previous orders where already subject of contest on same principles and where no change of circumstances – where defendants substantively entitled to indemnity costs.
Legislation Cited: (NSW) Civil Procedure Act 2005, s 98(1), s 98(3), s 98(4)
(NSW) Supreme Court Rules 1970, Pt 52A, r 5
(NSW) Uniform Civil Procedure Rules 2005, r 20.26, r 42.2
Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333
Grace v Grace (No 9) [2014] NSWSC 1239
Hancock v Rinehart (Lump sum costs) [2015] NSWSC 1640
Lucantonio v Kleinert & Ors (Costs) [2011] NSWSC 1642
New South Wales Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8
Roads and Traffic Authority of New South Wales, Council of the Shire of Evans & Pioneer Road Services Pty Ltd v Palmer (No 2) [2005] NSWCA 140
Category: Costs
Parties: Moustach Pty Ltd (first plaintiff)
Moussa Moussa (second plaintiff)
Salima Moussa (third plaintiff)
DMRJ Limited (third defendant)
TBT Investments Pty Limited (fourth defendant)
Representation:
Counsel:
D C Eardley (plaintiffs)
J M Ireland (third and fourth defendants)
Solicitors:
Russo & Partners (plaintiffs)
McGirr Lawyers (third and fourth defendants)

File Number(s): 2013/205000

Judgment (ex tempore)

HIS HONOUR: On 3 August 2015, I made orders disallowing amendments contained in a further amended statement of claim filed on 16 July 2015 (which sought to re-articulate the case pleaded against the third and fourth defendants) and dismissed the proceedings as against the third and fourth defendants. I then made an order that the plaintiffs pay the third and fourth defendants' costs of the proceedings, including all reserved costs.
The proceedings as against the first and second defendants went to trial commencing on 18 August 2015, and were determined by a judgment given on 21 August 2015. Needless to say, the third and fourth defendants were not engaged in that trial.
It now transpires – although nothing was said about it when the orders were made on 3 August – that on 3 December 2014, the solicitors for the third and fourth defendants communicated to the solicitors for the plaintiffs an offer of compromise pursuant to (NSW) Uniform Civil Procedure Rules 2005, r 20.26, containing terms that the claim against the third and…

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.

Keep reading for free

Create a free CaseChat account to read Moustach Pty Ltd v Eddie Takchi and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWSC 2080
Decision Date: 24 November 2015

CaseChat Overview and Summary

In the case of Moustach Pty Ltd v Eddie Takchi, the plaintiff sought to amend a costs order to include indemnity costs after the proceedings had concluded. The dispute arose from a legal action involving the plaintiff and the defendant, Eddie Takchi. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether an application for indemnity costs could be made after the conclusion of proceedings, particularly when the initial costs order had not yet been subject to a costs assessment.

The court examined the operation of the Uniform Civil Procedure Rules 2005, specifically rule 42.2, which empowers the court to make or reconsider costs orders before referral for assessment. The court considered whether rule 42.2 varied an order already made or established a basis of liability without affecting liability under the order. The court also weighed the reluctance to entertain an application that altered previous orders already contested on the same principles, especially in the absence of a change in circumstances. Ultimately, the court found that the defendants were substantively entitled to indemnity costs.

The court's reasoning focused on the procedural implications of altering a costs order post-proceedings and the effect of rule 42.2. The court determined that the application was not appropriate given the lack of a change in circumstances and the previous contest over the same principles. The final orders confirmed that the defendants were entitled to indemnity costs as a matter of substantive law, and the court refrained from altering the costs order made earlier in the proceedings.

Orders