Nazzal v 1Quay Corp Pty Ltd

[2022] NSWSC 848

Supreme Court

New South Wales

Medium Neutral Citation:

Nazzal v 1Quay Corp Pty Ltd & Anor [2022] NSWSC 848

Hearing dates:

Written submissions as to costs and orders 15 June 2022

Date of orders:

17 June 2022

Decision date:

20 June 2022

Jurisdiction:

Equity

Before:

Black J

Decision:

Orders as to interest and costs made.

Catchwords:

ORDERS – Interest at default contractual rate.

COSTS — Party/Party — Application for indemnity costs. 

Cases Cited:

- Gomba Holdings UK Ltd v Minories Finance Ltd (No 2) [1993] Ch 171

- Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87

- Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 3) [2010] NSWSC 1139

- Westpac Banking Corporation v Mason [2011] NSWSC 1241

Category:

Costs

Parties:

Ahmad Nazzal (Plaintiff)
1Quay Corp Pty Ltd (First Defendant)
Iman Yassin (Second Defendant)

Representation:

Counsel:
J Adamopoulos (Plaintiff)

Solicitors:
Madison Marcus (Plaintiff)
Mr I Yassin (self-represented) (First and Second Defendant)

File Number(s):

2021/109679

Judgment

1. By my judgment delivered on 7 June 2022 in these proceedings ([2022] NSWSC 742), I held that the Plaintiff, Mr Nazzal, succeeded in his claim for an the amount of $553,877.03, and failed in a further claim for 50% of Profits (as defined); that the Defendants, 1Quay Corp Pty Ltd (“1Quay”) and Mr Yassin, were jointly and severally liable for the costs of the proceedings; and I directed the parties to submit agreed short minutes of order or otherwise their respective draft short minutes of order and submissions as to the differences between them within 7 days, by 14 June 2022. Mr Nazzal submitted draft short minutes of order and short submissions on 15 June 2022. Mr Yassin, who had represented himself and 1Quay in the proceedings, had been provided with a copy of those draft orders but had not responded to them and did not provide draft orders or make submissions as to the orders which should be made. 1Quay and Mr Yassin have had an opportunity to be heard, although they have not taken up that opportunity.

2. Mr Nazzal submits and I accept that he has established his claim against each of 1Quay and Mr Yassin, as guarantor of 1Quay’s obligation, and judgment should be given against both of them. Mr Nazzal submits, and I accept, that the Deed and Amendment Deed to which I referred in the principal judgment provided for payment of Default Interest (as defined) at the relatively modest rate of 5% per annum, calculated daily, on the outstanding amount of the Settlement Demand, after a failure to remedy a default following the receipt of a default notice under the Deed. Mr Nazzal submits and I accept that interest accrued at that rate on and from 8 April 2021 and, on that basis, he calculates interest in the amount of $33,005. The orders should extend to the payment of interest in that amount.

3. Mr Nazzal relies on cl 2.7 of the Deed, as inserted by the Amendment Deed, to contend that 1Quay and Mr Yassin should be ordered to pay his legal costs associated with initiating proceedings and enforcement of the judgment debt on a full indemnity basis. He points out that he had claimed a contractual right to indemnity costs in his Statement of Claim and noted that the Defendants had admitted the relevant contractual terms in their Defence. Mr Adamopoulos, who appears for Mr Nazzal, submits that the Court would ordinarily exercise its discretion as to costs in accordance with a contractual right to costs on an indemnity basis: Gomba Holdings UK Ltd v Minories Finance Ltd (No 2) [1993] Ch 171 at 194, approved in Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87 at [14]. In Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 3) [2010] NSWSC 1139 at [22], [39], Nicholas J also referred to the decision in Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) as authority that the Court’s discretion would normally be exercised to give effect to the contractual entitlement and made an order for indemnity costs on that basis, and McCallum J (as her Honour then was) took the same approach in Westpac Banking Corporation v Mason [2011] NSWSC 1241 at [38].

4. I accept that, where cl 2.7 of the Deed, as inserted by the Amendment Deed, provided an entitlement to costs on an indemnity basis, Mr Nazzal’s costs of enforcing his rights in the proceedings should be awarded to him on that basis. It is therefore not necessary to address his further submissions as to offers which he had previously made on a without prejudice, except as to costs, basis or whether it had been unreasonable for 1Quay and Mr Yassin not to accept those offers.

5. For these reasons, I made orders in the form proposed by Mr Nazzal on 17 June 2022.

**********