Nassif v Fahd - [2007] NSWCA 308

New South Wales

Court of Appeal

CITATION: Nassif & Anor v Fahd & Ors [2007] NSWCA 308

HEARING DATE(S): Written Submissions 11 & 12/10/2007

JUDGMENT DATE:
31 October 2007

JUDGMENT OF: Ipp JA; McColl JA; Bryson AJA

DECISION: 1. Make no order as to costs in the District Court to the intent that each party be left to bear their own costs; 2. Make no order as to costs of the appeal to the intent that each party be left to bear their own costs.

CATCHWORDS: COSTS - appellants succeed on point not taken in District Court - 7-day trial in District Court unlikely to have taken place if point relied on there - overwhelmingly strong point based on clear High Court authority - review of discretionary considerations - each party left to bear own costs in District Court and Court of Appeal.

LEGISLATION CITED: Civil Procedure Act 2005; s 98

CASES CITED: Latoudis v Casey (1990) 170 CLR 534
Oshlack v Richmond River Council (1998) 193 CLR 72

PARTIES: Sarkis Nassif - 1st Appellant
Bernadette Nassif - 2nd Appellant
Alex George Fahd - 1st Respondent
Ibtasim Fahd - 2nd Respondent
Alexi Mama Fahd - 3rd Respondent
Priscilla Fahd - 4th Respondent

FILE NUMBER(S): CA 40586/2006

COUNSEL: Mr R. Forster SC with Mr D.L. Warren for the appellant
Mr F. Lever SC for the Respondent

SOLICITORS: Advance Legal - Appellant
McGrath Dicembre & Co - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 5026/2004

LOWER COURT JUDICIAL OFFICER: Judge O'Connor Q.C.

CA 40586/2006

IPP JA
McCOLL JA
BRYSON AJA
31 October 2007

Sarkis NASSIF and Bernadette NASSIF v Alex George FAHD, Ibtasim FAHD, Alexi Mama FAHD and Priscilla FAHD (No. 2)

Judgment

1 THE COURT: These reasons deal with costs in the District Court and in the Court of Appeal, further consideration of which was reserved on 8 October 2007 – [2007] NSWCA 269. The appellants, defendants in the District Court, succeeded completely on appeal, the appeal was allowed and judgment was given for the defendants. The Court has a wide discretionary power with respect to costs: see Civil Procedure Act 2005 s 98. The ordinary course is that costs follow the event: see UCPR 42.1. The ordinary outcome of the exercise of discretionary powers as to costs, and the circumstances in which the ordinary outcome has been departed from are dealt with in many reported decisions; particularly note observations in the High Court in Latoudis v Casey (1990) 170 CLR 534 at 566-567 and Oshlack v Richmond River Council (1998) 193 CLR 72 at 97-98 [67] to [70] (McHugh J). The discretion is sufficiently wide to support an order costs against a successful party, where circumstances make that appropriate. A costs order is remedial, not punitive. Withholding costs should not be a punitive measure, as awarding costs should not be a punitive measure.

2 The most important consideration is whether costs were reasonably incurred so as to achieve the outcome which the court's decision…

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 Nassif v Fahd

Details

AGLC: Nassif v Fahd [2007] NSWCA 308
Case: [2007] NSWCA 308
Decision Date: 31 October 2007

CaseChat Overview and Summary

The appeal concerned the costs orders made by the District Court and the Court of Appeal in proceedings between Nassif and Fahd. The appellants had succeeded on a particular point in the Court of Appeal, which had not been raised in the District Court.

The central legal issue before the Court of Appeal was whether to depart from the usual rule that costs follow the event, given that the successful point had not been taken in the lower court. The court was required to consider the discretionary factors relevant to awarding costs, including the strength of the successful argument and the likelihood of the District Court trial having proceeded differently had the point been raised earlier.

The Court of Appeal reasoned that the point on which the appellants succeeded was overwhelmingly strong and based on clear High Court authority. However, it was also acknowledged that a 7-day trial in the District Court was unlikely to have taken place if this point had been relied upon at that stage. Applying its discretion, the court determined that it was appropriate for each party to bear their own costs in both the District Court and the Court of Appeal.

Consequently, the Court of Appeal made no order as to costs in the District Court, leaving each party to bear their own costs. Similarly, no order was made as to the costs of the appeal, with each party again left to bear their own costs.

Orders

Orders of the court

1. Make no order as to costs in the District Court to the intent that each party be left to bear their own costs; 2. Make no order as to costs of the appeal to the intent that each party be left to bear their own 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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CITATION:	Nassif & Anor v Fahd & Ors [2007] NSWCA 308
HEARING DATE(S):	Written Submissions 11 & 12/10/2007
JUDGMENT DATE:	31 October 2007
JUDGMENT OF:	Ipp JA; McColl JA; Bryson AJA
DECISION:	1. Make no order as to costs in the District Court to the intent that each party be left to bear their own costs; 2. Make no order as to costs of the appeal to the intent that each party be left to bear their own costs.
CATCHWORDS:	COSTS - appellants succeed on point not taken in District Court - 7-day trial in District Court unlikely to have taken place if point relied on there - overwhelmingly strong point based on clear High Court authority - review of discretionary considerations - each party left to bear own costs in District Court and Court of Appeal.
LEGISLATION CITED:	Civil Procedure Act 2005; s 98
CASES CITED:	Latoudis v Casey (1990) 170 CLR 534 Oshlack v Richmond River Council (1998) 193 CLR 72
PARTIES:	Sarkis Nassif - 1st Appellant Bernadette Nassif - 2nd Appellant Alex George Fahd - 1st Respondent Ibtasim Fahd - 2nd Respondent Alexi Mama Fahd - 3rd Respondent Priscilla Fahd - 4th Respondent
FILE NUMBER(S):	CA 40586/2006
COUNSEL:	Mr R. Forster SC with Mr D.L. Warren for the appellant Mr F. Lever SC for the Respondent
SOLICITORS:	Advance Legal - Appellant McGrath Dicembre & Co - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	5026/2004
LOWER COURT JUDICIAL OFFICER:	Judge O'Connor Q.C.