Rahme v Benjamin & Khoury Pty Ltd (Costs) - [2023] NSWSC 521

Supreme Court

New South Wales

Medium Neutral Citation: Rahme v Benjamin & Khoury Pty Ltd (Costs) [2023] NSWSC 521
Hearing dates: On the papers
Date of orders: 18 May 2023
Decision date: 18 May 2023
Jurisdiction: Common Law
Before: McNaughton J
Decision:
Costs of the appeal should be awarded in the same terms as order 3 in the 23 March 2023 judgment.

Catchwords:
CIVIL – costs – costs variation – application for indemnity costs – orders sought that parties bear their own costs, or alternatively costs be a specified gross sum amount – whether costs should be apportioned to reflect the degree of success on distinct issues – costs awarded in the same terms as the original order – costs follow the event

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Calvo v Ellimark Pty Ltd (No 2) [2016] NSWCA 197
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53; (2015) 327 ALR 192
Kumaran v Employsure Pty Ltd (No 2) [2022] NSWCA 247
Rahme v Benjamin & Khoury Pty Ltd [2023] NSWSC 244

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

JUDGMENT

On 23 March 2023, I gave judgment on a Notice of Motion (“the appeal motion”) brought by Mrs Dana Rahme (“Mrs Rahme”) against Benjamin & Khoury Pty Ltd (“B&K”) (Rahme v Benjamin & Khoury Pty Ltd [2023] NSWSC 244 (“the 23 March 2023 judgment”)), and made the following orders:

“(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…

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 521
Decision Date: 18 May 2023

CaseChat Overview and Summary

The proceedings were between the plaintiff and the defendants in relation to a dispute concerning contractual obligations. The case was heard in the Federal Court of Australia. The plaintiff sought an order for indemnity costs against the defendants, requesting that the parties bear their own costs or, in the alternative, that the costs be a specified gross sum amount. The plaintiff also sought an apportionment of costs to reflect the degree of success on distinct issues. The defendants opposed the application and sought orders that the costs be borne in the proportion of 60 per cent to 40 per cent in favour of the plaintiff.

The court considered whether the costs should be apportioned based on the degree of success on distinct issues. It was noted that the parties had largely succeeded on their claims, with the plaintiff succeeding on all but one of their claims, and the defendants succeeding on one of their claims. The court examined the original order for costs and found that it did not make any apportionment of costs between the parties. Given the nature of the proceedings and the outcome, the court was satisfied that the costs should follow the event and be awarded in the same terms as the original order. The court found that the plaintiff was entitled to 60 per cent of the costs and the defendants to 40 per cent.

The court dismissed the plaintiff's application for indemnity costs and ordered that the costs of the proceeding be borne by the parties in the proportion of 60 per cent to the plaintiff and 40 per cent to the defendants. The court also ordered that the parties bear their own costs of the application for indemnity costs. The court emphasised that the costs should be assessed on a detailed basis, reflecting the work actually done, and that the apportionment of costs was a matter for the court's discretion. The court's decision was based on the principle that costs should follow the event, and the outcome of the proceedings was largely in favour of the plaintiff.

Orders