Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Rahme v Benjamin & Khoury Pty Ltd (No 2) [2019] NSWCA 239 Hearing dates: On the papers Date of orders: 08 October 2019 Decision date: 08 October 2019 Before: Bathurst CJ; Macfarlan JA; McCallum JA Decision: (1) Allow the appeal in respect of the dismissal of Mrs Rahme’s claim against Benjamin & Khoury Pty Ltd (“B&K”).
(2) Dismiss the appeal in relation to the rejection of Mrs Rahme’s claim against Mr Dieb Khoury.
(3) Dismiss Mr Rahme’s appeal.
(4) Set aside:
(a) As between Mrs Rahme and B&K only:
(i) the judgment in the Court below (proceedings 2015/300814) entered on 21 November 2018;
(ii) the judgment in proceedings 2014/262387 entered on 5 September 2014 (Judgment consequent on an assessment of costs).
(b) (As between all parties in the court below) the judgment in the Court below (proceedings 2015/300814) entered on 7 March 2019 (the Indemnity Costs Order).
(c) (As between all parties to proceedings 2015/363098) the order made on 14 June 2016 in proceedings 2015/363098 (the Costs Order in the Caveat Proceedings).
(d) (As between all parties to the judgment) the judgment in proceedings 2017/374241 entered on 11 December 2017 (Judgment consequent on filing an assessment of the Costs Order in the Caveat Proceedings).
(5) In lieu thereof:
As between Mrs Rahme and B&K:
(a) Judgment for Mrs Rahme against B&K in the sum of $302,040.30 including interest to 6 September 2019 on which date this judgment is to take effect.
(b) Order that, as between Mrs Rahme and B&K, the Deed of Equitable Charge Over Land dated 13 September 2010 as varied by Deeds dated 13 September 2010, 5 October 2010 and 14 October 2010 be set aside.
(c) Order that, as between Mrs Rahme and B&K only, the Costs Agreement dated 5 October 2010 be set aside.
(d) Order that B&K pay the costs of Mrs Rahme (but not of Mr Rahme) of the proceedings in the court below on the ordinary basis.
(6) Order that B&K pay the costs of Mrs Rahme of the proceedings in the Court of Appeal on the ordinary basis.
(7) Note that there is no order for costs in the Court of Appeal as between Mrs Rahme and Mr Khoury.
(8) Note that there is no order for costs in the Court of Appeal as between Mr Rahme, B&K and Mr Khoury.Catchwords: COSTS – Calderbank offer – offer made jointly to both respondents – whether unsuccessful respondent alone could have accepted offer – whether it would have been in a better position if it had accepted offer than it achieved on appeal Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Category: Costs Parties: Dana Rahme (First Appellant)
Gabriel Rahme (Second Appellant)
Benjamin & Khoury Pty Ltd (First Respondent)
Dieb P Khoury (Second Respondent)Representation: Counsel:
Solicitors:
D A Allen (Appellants)
A R Zahra / F Tao (Respondents)
Kekatos Lawyers (Appellants)
Sparke Helmore (Respondents)
File Number(s): CA 2018/379022 Decision…
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- Case
- [2019] NSWCA 239
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether Mrs Rahme's claim against B&K should have been dismissed, whether her claim against Mr Khoury was correctly rejected, and whether Mr Rahme's appeal should be dismissed. A significant aspect of the appeal also concerned the application of a *Calderbank* offer made jointly to both respondents and whether the unsuccessful respondent could have accepted it, and if so, whether they would have been in a better position had they accepted it compared to the outcome on appeal.
The Court of Appeal allowed the appeal in respect of the dismissal of Mrs Rahme’s claim against B&K, finding that the primary judge erred in dismissing this claim. However, the appeal concerning the rejection of Mrs Rahme’s claim against Mr Khoury was dismissed, as was Mr Rahme’s appeal. The Court set aside various judgments and orders from the court below, including the indemnity costs order and costs orders in caveat proceedings.
In lieu of the set-aside judgments, the Court of Appeal ordered that judgment be entered for Mrs Rahme against B&K in the sum of $302,040.30, and that certain deeds and a costs agreement between Mrs Rahme and B&K be set aside. B&K was ordered to pay the costs of Mrs Rahme (but not Mr Rahme) in the court below on the ordinary basis, and B&K was also ordered to pay the costs of Mrs Rahme in the Court of Appeal on the ordinary basis. No orders for costs were made in the Court of Appeal as between Mrs Rahme and Mr Khoury, or as between Mr Rahme, B&K, and Mr Khoury.
Orders
Orders of the court
(1) Allow the appeal in respect of the dismissal of Mrs Rahme’s claim against Benjamin & Khoury Pty Ltd (“B&K”).
(2) Dismiss the appeal in relation to the rejection of Mrs Rahme’s claim against Mr Dieb Khoury.
(3) Dismiss Mr Rahme’s appeal.
(4) Set aside:
(a) As between Mrs Rahme and B&K only:
(i) the judgment in the Court below (proceedings 2015/300814) entered on 21 November 2018;
(ii) the judgment in proceedings 2014/262387 entered on 5 September 2014 (Judgment consequent on an assessment of costs).
(b) (As between all parties in the court below) the judgment in the Court below (proceedings 2015/300814) entered on 7 March 2019 (the Indemnity Costs Order).
(c) (As between all parties to proceedings 2015/363098) the order made on 14 June 2016 in proceedings 2015/363098 (the Costs Order in the Caveat Proceedings).
(d) (As between all parties to the judgment) the judgment in proceedings 2017/374241 entered on 11 December 2017 (Judgment consequent on filing an assessment of the Costs Order in the Caveat Proceedings).
(5) In lieu thereof:
As between Mrs Rahme and B&K:
(a) Judgment for Mrs Rahme against B&K in the sum of $302,040.30 including interest to 6 September 2019 on which date this judgment is to take effect.
(b) Order that, as between Mrs Rahme and B&K, the Deed of Equitable Charge Over Land dated 13 September 2010 as varied by Deeds dated 13 September 2010, 5 October 2010 and 14 October 2010 be set aside.
(c) Order that, as between Mrs Rahme and B&K only, the Costs Agreement dated 5 October 2010 be set aside.
(d) Order that B&K pay the costs of Mrs Rahme (but not of Mr Rahme) of the proceedings in the court below on the ordinary basis.
(6) Order that B&K pay the costs of Mrs Rahme of the proceedings in the Court of Appeal on the ordinary basis.
(7) Note that there is no order for costs in the Court of Appeal as between Mrs Rahme and Mr Khoury.
(8) Note that there is no order for costs in the Court of Appeal as between Mr Rahme, B&K and Mr Khoury.
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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