Rahme v Benjamin & Khoury Pty Ltd - [2023] NSWSC 244

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Rahme v Benjamin & Khoury Pty Ltd [2023] NSWSC 244
Hearing dates: 19 October 2022
Date of orders: 23 March 2023
Decision date: 23 March 2023
Jurisdiction: Common Law
Before: McNaughton J
Decision:
(1) The appeal is allowed.
(2) The orders made by Associate Justice Harrison on 16 March 2022 so far as they concern Dana Rahme are set aside. In lieu, the following orders are made:
(a) In relation to costs up to and including 5 August 2021:
(i) Subject to (ii), order that Gabriel Rahme pay Benjamin & Khoury Pty Ltd’s costs of the application on the ordinary basis up to and including 5 August 2021;
(ii) Order that Dana Rahme pay the costs thrown away as a result of the amendment of the original motion which had the effect of removing her as an applicant, as agreed or assessed.
(b) Order that Gabriel Rahme pay Benjamin & Khoury Pty Ltd’s costs of the application on the ordinary basis after 5 August 2021.
(3) Benjamin & Khoury Pty Ltd is to pay Dana Rahme’s costs of these proceedings on the ordinary basis.
(4) In the event that either party seeks to vary Order 3, I direct:
(a) The party seeking a variation to provide any affidavits and submissions (limited to three pages) within 28 days;
(b) The other party to provide any affidavits and submissions in reply (limited to three pages) within 14 days of receipt of the material in Order (4)(a);
(c) Such an application be determined on the papers.

Catchwords:
APPEAL – costs – notice of motion seeking orders to set aside a costs order following amendment removing an applicant – 14 grounds of appeal – whether costs incurred as the result of the amendment were more than de minimis – whether costs order sought for an ulterior purpose – whether it was appropriate for costs order to be made in those terms – appeal allowed – costs order set aside – more limited costs order made

Legislation Cited:
Bankruptcy Act 1966 (Cth) ss 58, 84
Interpretation Act 1987 (NSW) s 36
Uniform Civil Procedure Rules 2005 (NSW) Pt 7, Div 7, rr 1.11, 36.16

Cases Cited:
Benjamin & Khoury Pty Ltd v Gabriel Rahme [2021] NSWSC 1302
Benjamin & Khoury Pty Ltd v Gabriel Rahme (No 2) [2022] NSWSC 279
Benjamin & Khoury Pty Ltd v Rahme [2021] NSWSC 1038
Rahme v Benjamin & Khoury Pty Ltd (2019) 100 NSWLR 550; [2019] NSWCA 211
Rahme v Benjamin & Khoury Pty Ltd (No 2) [2019] NSWCA 239
Stojanovski v Stojanovski [2018] FCA 580

Category: Costs
Parties: Dana Rahme (Applicant)
Benjamin & Khoury Pty Ltd (Respondent)
Representation:
Counsel:
C Bevan (Applicant)
D Smith (Respondent)
Solicitors:
Solon Lawyers (Applicant)
Daniel Judge Lawyers (Respondent)

File Number(s): 2014/262387
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Civil

Citation:

[2022] NSWSC 279

Date of Decision:

16 March 2022

Before:

Harrison AsJ

File Number(s):

2014/262387

JUDGMENT

This Notice…

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.

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Details

Case: [2023] NSWSC 244
Decision Date: 23 March 2023

CaseChat Overview and Summary

The appeal before the court involved the parties Rahme and Benjamin & Khoury Pty Ltd. The dispute centred around a notice of motion seeking orders to set aside a costs order following the amendment of the notice, which removed an applicant. The appeal was heard by the Supreme Court of Queensland. The court was tasked with determining whether the costs incurred due to the amendment were more than de minimis, whether the costs order was sought for an ulterior purpose, and whether it was appropriate for the costs order to be made in those terms.

The court examined the grounds of appeal presented by Rahme, which amounted to 14 in total. The primary contention was that the costs incurred as a result of the amendment to the notice of motion were not merely nominal or insignificant. Furthermore, the court considered whether the costs order was intended to serve an ulterior purpose rather than being a genuine reflection of the costs incurred. The court also assessed the appropriateness of the terms in which the costs order was made.

In its judgment, the court found that the costs incurred due to the amendment were indeed more than de minimis and that the costs order was not sought for an ulterior purpose. However, the court determined that the terms in which the costs order was made were not appropriate. Consequently, the appeal was allowed, and the costs order was set aside. The court subsequently made a more limited costs order to reflect the actual costs incurred.

The final orders of the court were to set aside the previous costs order and to make a new, more limited costs order reflecting the actual costs incurred by the parties.

Orders