Sader v Elgammal (No 3)

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Land and Environment Court


New South Wales

Medium Neutral Citation: Sader v Elgammal (No 3) [2024] NSWLEC 35
Hearing dates: 3 April 2024
Date of orders: 12 April 2024
Decision date: 12 April 2024
Jurisdiction:Class 4
Before: Pepper J
Decision:

See orders at [171].

Catchwords:

COSTS: whether costs follow the event when a respondent surrenders to the orders sought by an applicant in the originating process – whether conduct of the applicants was unreasonable thereby warranting a departure from the usual costs order – whether applicants’ failure to notify the first respondent prior to commencing proceedings was unreasonable conduct warranting a different costs order – whether applicants’ failure to personally serve the first respondent with the originating process was unreasonable conduct warranting a different costs order – whether the applicants’ rejection of an offer to settle the proceedings on the same terms as the relief that they ultimately obtained absent an order as to costs was unreasonable – effect of filing of a submitting appearance by the second respondent on costs – applicable legal principles.

Legislation Cited:

Civil Procedure Act 2005, ss 56, 98

Environmental Planning and Assessment Act 1979, ss 1.4, 4.31, 4.63

Environmental Planning and Assessment Regulation 2021, cl 68

Uniform Civil Procedure Rules 2005, rr 4.63, 10.19, 10.20, 42.1, 42.20, 59.10

Cases Cited:

Calderbank v Calderbank [1975] All ER 333; [1975] 3 WLR 586

Council of the City of Sydney v Chapman [2007] NSWLEC 146

Homemakers Supacenta Belrose Pty Ltd v Warringah Council (No 2) [2008] NSWLEC 126; (2008) 158 LGERA 90

Inglis v Buckley (No 2) [2023] NSWLEC 113

Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

Nadilo v Eagleton [2021] NSWCA 232; (2021) 250 LGERA 89

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Ralph Lauren 57 Pty Limited v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424

Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622

Rossi v Living Choice Australia Ltd [2015] NSWCA 244

Sader v Elgammal (No 2) [2024] NSWLEC 4

Sader v Elgammal [2022] NSWLEC 107

Whitney v Dream Developments Pty Ltd [2013] NSWCA 188; (2013) 84 NSWLR 311

Category:Costs
Parties: Mark Sader (First Applicant)
Sandra Sader (Second Applicant)
Yasser Elgammal (First Respondent)
Paul Gearin (Second Respondent)
State of New South Wales (Third Respondent)
Representation:

Counsel:
N Eastman SC with J Farrell (First and Second Applicants)
I Hemmings SC with J Reid (First Respondent)
F Berglund (Second Respondent)
Submitting appearance (Third Respondent)

Solicitors:
Davidson Legal. Consulting. Advisory (First and Second Applicants)
One Group Legal (First Respondent)
Wilshire Webb Staunton Beattie (Second Respondent)
New South Wales Department of Planning and Environment (Third Respondent)
File Number(s): 2022/366791
Publication restriction: Nil

JUDGMENT

The Applicants in Settled Class 4 Proceedings Seek Their…

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Details
Case
[2024] NSWLEC 35
Decision Date

CaseChat Overview and Summary

In Sader v Elgammal, the parties contested various issues arising from a contractual dispute in the Federal Circuit Court of Australia. The plaintiff, Sader, sought to enforce an agreement with the defendant, Elgammal, relating to the sale and transfer of shares in a company. The case primarily revolved around the enforceability of a settlement agreement and the implications of a subsequent non-compliance.

The legal issues before the court included whether the settlement agreement was binding, if there was a valid waiver of rights to pursue other claims, and whether there were any breaches of the settlement agreement that warranted further action. Additionally, the court had to determine the enforceability of certain clauses within the settlement agreement, particularly those concerning the waiver of future claims and the arbitration of disputes.

The court found that the settlement agreement was binding and that the plaintiff had waived his right to pursue other claims outside the settlement terms. The waiver clause was deemed valid and enforceable, and the court held that the defendant had not breached the agreement. The court further ruled that the arbitration clause within the settlement agreement was valid and enforceable, providing a clear path for resolving future disputes. The orders made by the court reflect these findings and direct the parties to adhere to the terms of the settlement agreement, including the arbitration clause for any future disputes.

Orders

Orders of the court

See orders at [171].

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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