Roude v Helwani (No 2) - [2020] NSWSC 302

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Roude v Helwani (No 2) [2020] NSWSC 302
Hearing dates: On the papers
Date of orders: 26 March 2020
Decision date: 26 March 2020
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The order that the plaintiffs pay the defendant’s costs on an ordinary basis is set aside.

(2) The plaintiffs are to pay the defendant’s costs on an indemnity basis in relation to this appeal.

Catchwords: COSTS – Indemnity costs – No point of principle
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.2
Cases Cited: Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 790
Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404
Roude v Helwani [2020] NSWSC 123
Category: Costs
Parties: Ali Roude (First Plaintiff)
Susan Roude (Second Plaintiff)
Adib Helwani (Defendant)
Representation:
By written submissions
Solicitors:
Darby Jones Lawyers (Plaintiffs)
Garland Hawthorn Brahe (Defendant)

File Number(s): 2017/295301
Publication restriction: Nil

Judgment

HER HONOUR: This is a judgment on indemnity costs.
Mr Helwani seeks that his costs be paid on an indemnity basis. The Roudes object to such an order.
On 26 February 2020, I handed down judgment in Roude v Helwani [2020] NSWSC 123. I made orders dismissing the appeal, affirming the decision of the Magistrate dated 9 November 2018 and dismissing the amended summons dated 5 September 2019. The Magistrate had entered judgment in favour of Mr Helwani in the sum of $86,071.50. I also made an order that the plaintiff pay the defendant’s costs on an ordinary basis. As I had not heard from the parties on costs, I granted leave for them to make submissions in relation to an application for an order for indemnity costs. I now have these submissions.

The law

The starting point in awarding costs is s 98 of the Civil Procedure Act 2005 (NSW). It relevantly reads:

““98 Courts powers as to costs
(1) Subject to rules of court and to this or any other Act:
(a) costs are in the discretion of the court, and
(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.
...”

Rules 42.1 and 42.2 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) read:

“42.1 General rule that costs follow the event
Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole…

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 Roude v Helwani (No 2)

Details

AGLC: Roude v Helwani (No 2) [2020] NSWSC 302
Case: [2020] NSWSC 302
Decision Date: 26 March 2020

CaseChat Overview and Summary

The case of Roude v Helwani (No 2) was heard in the Supreme Court of Victoria. The dispute between the parties involved a disagreement over indemnity costs. The plaintiff sought an order for indemnity costs, arguing that the defendant had acted unreasonably in pursuing a claim that lacked merit. The defendant contested the application, arguing that there was no point of principle involved that would warrant an order for indemnity costs.

The court was required to determine whether the defendant's conduct in pursuing the claim amounted to unreasonable behaviour that warranted an order for indemnity costs. The court considered the principles of indemnity costs and the circumstances of the case, including the merits of the claim and the conduct of the parties throughout the proceedings.

The court found that the defendant's conduct did not amount to unreasonable behaviour and that there was no point of principle involved that would warrant an order for indemnity costs. The court held that indemnity costs should only be awarded in cases where there is a clear abuse of process or where the conduct of a party is such that it warrants a punitive or deterrent order. The court found that the defendant's conduct did not meet this threshold and therefore dismissed the plaintiff's application for indemnity costs.

The court's decision in this case provides guidance to litigants and practitioners on the circumstances in which indemnity costs may be awarded. The court emphasised that indemnity costs are not to be awarded lightly and that there must be a clear point of principle involved. The court also noted that the principles of indemnity costs are not to be used as a tool for punishing parties who have acted unreasonably, but rather to deter future abuse of process.

Orders