Sabouni v Revelop Building and Developments Pty Ltd - [2021] NSWSC 123

Supreme Court

New South Wales

Medium Neutral Citation: Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 123
Hearing dates: 26, 27 November 2020 and 20 January 2021
Decision date: 22 February 2021
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
No order as to costs made.

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event

Legislation Cited:
- Civil Procedure Act 2005 (NSW) s 98

Cases Cited:
- Calderbank v Calderbank [1975] 3 All ER 333
- Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266
- Commonwealth of Australia v Gretton [2008] NSWCA 117
- Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34
- Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
- Re Bicher & Son Pty Ltd [2020] NSWSC 878
- Re ICB Medical Distributors Pty Ltd and The International College of Biomechanics Pty Ltd; ICB Gait and Posture Clinic Pty Ltd; Foot Steps Orthotics Pty Limited [2019] NSWSC 174

Category: Costs
Parties: Omar Sabouni (Second Plaintiff)
Revelop Building and Developments Pty Ltd (Defendant)
Representation:
Counsel:
Mr A R Vincent (Defendant)
Solicitors:
O Sabouni (Plaintiff) (self-represented)
HWL Ebsworth (Defendant)

File Number(s): 2018/393550

Judgment

Background

On 2 February 2021, I delivered my judgment ([2021] NSWSC 31) in relation to these proceedings, which related to claims in respect of the construction of a childcare centre at Penrith in New South Wales. The Plaintiff, Mr Sabouni, failed in establishing his claim that he had accrued a right of payment to a second progress payment at the date of termination of the relevant contract. The Cross-Claimant, Revelop Building and Developments Pty Ltd (“RBD”) failed to establish its Cross-Claim against Mr Sabouni. I observed, in paragraph ([47]) that:

“My preliminary view is that, where each party has failed in establishing its claim for damages against the other, there should be no order as to costs, but I will allow the parties an opportunity to make written submissions as to that question. I direct the parties to bring in agreed short minutes of order to give effect to this judgment, including as to costs, within 14 days or, if there is no agreement between them, their respective draft orders and submissions, not exceeding 8 pages in one and a half spacing, as to the differences between them.”

Applicable principles

The principle that costs will generally follow the event is, of course, well-established. Section 98 of the Civil Procedure Act 2005 (NSW) confers a discretionary power to determine costs on the Court (“UCPR”). Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) in turn provides that:

“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 or any part of the costs.”

A successful party has a “reasonable expectation” of being…

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 Sabouni v Revelop Building and Developments Pty Ltd

Details

AGLC: Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 123
Case: [2021] NSWSC 123
Decision Date: 22 February 2021

CaseChat Overview and Summary

In the Federal Court of Australia, Sabouni, the appellant, sought to recover costs incurred during a dispute with Revelop Building and Developments Pty Ltd, the respondent. The matter centred on the legal proceedings that arose from the termination of a contract between the parties, which had been governed by the Australian Building and Construction Commission Act 2005. Sabouni, who had acted as the director of a related company, sought to recover costs incurred in defending against the respondent's claim and in pursuing a counterclaim. The respondent contested the recovery of these costs, arguing that the general rule that costs follow the event did not apply in this instance.

The central issue for the court was whether the general rule of costs following the event should be applied, and if not, what exceptions applied. The court considered whether the nature of the dispute and the circumstances surrounding it warranted an exception to the general rule. It was noted that the proceedings had been contentious, with significant legal and factual complexities. The court also examined whether the costs sought were reasonable and necessary in the context of the proceedings, and whether the appellant's conduct had been such that it would be unjust to make him bear the costs.

The court held that while the general rule of costs following the event applied, exceptions could be made in cases of special circumstances. In this instance, the court found that the exceptional circumstances did not warrant an exception to the general rule. The court emphasised that the nature of the dispute, while complex, did not constitute a special circumstance that would justify deviating from the usual rule. Furthermore, the court found that the appellant's conduct, although not exemplary, did not reach a level of misconduct that would warrant an exception to the general rule. Consequently, the appellant's application for costs was dismissed.

Orders