Qasim v Mitchell (No 2) - [2022] NSWSC 1231

Supreme Court

New South Wales

Medium Neutral Citation: Qasim v Mitchell (No 2) [2022] NSWSC 1231
Hearing dates: On the papers
Decision date: 13 September 2022
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   Order the plaintiffs to pay the second defendant’s costs, as ordered in order (2)(b) made on 30 May 2022, in the gross sum of $11,453.69.
(2)   Order the plaintiffs to pay the fourth defendant’s costs, as ordered in order (4)(b) made on 30 May 2022, in the gross sum of $22,000.
(3)   Vary order (5)(b) made on 30 May 2022 and order the plaintiffs to pay the fifth defendant’s costs on an indemnity basis in the gross sum of $17,000.

Catchwords:
COSTS — Party/Party — applications for gross sum costs order — application for indemnity costs – where claims summarily dismissed — applications granted

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), r 42.5

Cases Cited:
Bechara(t/asBecharaand Co) v Bates [2016] NSWCA 294
Hamod v New South Wales [2002] FCA 424; (2002) 188 ALR 659
Qasim v Mitchell [2022] NSWSC 698

Category: Procedural rulings
Parties: Shaheen Qasim (First Plaintiff)
Fred Klein (Second Plaintiff)
Heather Mitchell (First Defendant)
Rachel Deegan (Second Defendant)
ILP Strathfield Pty Ltd trading as Strathfield Law (Third Defendant)
Yennie Chen (Fourth Defendant)
Anthony Fowler (Fifth Defendant)
Andrew Noble (Sixth Defendant)
Representation:
Counsel:
S Qasim (Plaintiffs)
H Mitchell (First Defendant)
B Shaw (Second Defendant)
J Dooley (Third Defendant)
S Maybury (Fourth Defendant)
L Cooper-Hackman (Fifth Defendant)
Solicitors:
Not applicable (Plaintiffs)
Not applicable (First Defendant)
Bridges Lawyers (Second Defendant)
Sparke Helmore Lawyers (Third Defendant)
DLA Piper Australia (Fourth Defendant)
Barry Nilsson Lawyers (Fifth Defendant)

File Number(s): 2021/279779

Judgment

Introduction

On 30 May 2022, I published reasons for my decision (Qasim v Mitchell [2022] NSWSC 698 (the principal judgment)) and made the following orders:

“(1)   In respect of the first defendant’s notice of motion filed on 11 November 2021:
(a)   dismiss the proceedings against the first defendant; and
(b)   subject to order (6) below, order the plaintiffs to pay the first defendant’s costs of the proceedings.
(2)   In respect of the second defendant’s notice of motion filed on 10 December 2021:
(a)   dismiss the proceedings against the second defendant; and
(b)   subject to order (6) below, order the plaintiffs to pay the second defendant’s costs of the proceedings.
(3)   In respect of the third defendant’s notice of motion filed on 11 November 2021:
(a)   dismiss the proceedings against the third defendant; and
(b)   subject to order (6) below, order the plaintiffs to pay the third defendant’s costs of the proceedings.
(4)   In respect of the fourth defendant’s notice of motion filed on 10 December 2021:
(a)   remove the fourth defendant as a party to the proceedings; and
(b)   subject to order (6) below, order the plaintiffs to pay the fourth defendant’s costs of the proceedings.
(5)   In respect of the fifth defendant’s notice of motion filed on 9 December 2021:
(a)   dismiss the proceedings…

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 Qasim v Mitchell (No 2)

Details

AGLC: Qasim v Mitchell (No 2) [2022] NSWSC 1231
Case: [2022] NSWSC 1231
Decision Date: 13 September 2022

CaseChat Overview and Summary

The case of Qasim v Mitchell (No 2) involved a dispute between the parties, Qasim and Mitchell, concerning applications for costs in relation to a proceeding where claims were summarily dismissed. The matter was heard by the Federal Circuit Court of Australia. The primary focus of the court's decision was on the applications for gross sum costs and indemnity costs. The court had to determine whether the applicants were entitled to such costs, given the circumstances of the case.

The legal issues before the court included whether the applications for gross sum costs and indemnity costs were justified in light of the summary dismissal of the claims. The court had to consider the principles governing costs orders, particularly in relation to successful parties seeking costs from unsuccessful parties in proceedings where claims were dismissed without substantive hearings. The applicants argued that the circumstances warranted a departure from the usual costs orders, particularly given the summary dismissal of their claims.

In its decision, the court held that the applicants were entitled to the gross sum costs and indemnity costs they sought. The court reasoned that the applications were appropriate in light of the summary dismissal of the claims and the applicants' success in those proceedings. The court concluded that the applicants had met the necessary criteria for such costs orders, taking into account the particular circumstances of the case. The court granted the applications for costs, providing the applicants with the relief they sought.

As a result of the decision, the applicants were awarded the gross sum costs and indemnity costs they had applied for. The court's ruling confirmed the entitlement to these costs, reflecting the court's assessment of the appropriate costs order in the context of the summary dismissal of claims. The decision provided clarity on the costs orders in this specific case, ensuring that the applicants received the financial relief they were entitled to.

Orders