Sergio Andres Chocron v Mina Onkoud (No 2) - [2020] NSWSC 214

Supreme Court

New South Wales

Medium Neutral Citation: Sergio Andres Chocron v Mina Onkoud (No 2) [2020] NSWSC 214
Hearing dates: 10 March 2020
Date of orders: 10 March 2020
Decision date: 10 March 2020
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) Application to vary costs order, Order 3, made on 23 December 2019 is refused.
(2) Each party is to pay their costs of this application.

Catchwords: COSTS – application to vary costs order – third party costs – action by defendant's brother-in-law – enforcement of a mortgage – whether husband as third party should pay costs – whether husband played active part in the litigation – whether husband "person of straw" – interests of justice test
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(1)(a)
Conveyancing Act 1919 (NSW), 38(1)
Uniform Civil Procedure Rules 2005 (NSW), Part 42, s 42.1
Cases Cited: Brand2Content t/as Franchise Works v Dalby [2019] NSWCA 16
FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340
Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34
Knight v FP Special Assets Limited (1992) 174 CLR 178; [1992] HCA 28
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Sergio Andres Chocron v Mina Onkoud [2019] NSWSC 1823
Yu v CAO (2015) 91 NSWLR 190; [2015] NSWCA 276
Category: Costs
Parties: Sergio Andres Chocron (Plaintiff)
Mina Onkoud (Defendant)
Fabian Chocron (Respondent)
Representation:
Counsel:
Ms N Obrart (Defendant)
Solicitors:
Origin Lawyers (Plaintiff – no appearance)
Harper James Law Group (Defendant)
Fabian Chocron (Respondent - no appearance)

File Number(s): 2017/145654
Publication restriction: Nil

Judgment

On 23 December 2019, I delivered the principal judgment in this matter: Sergio Andres Chocron v Mina Onkoud [2019] NSWSC 1823. At that time, I made the following orders: the statement of claim is dismissed; the cross-claim is dismissed and the plaintiff is to pay the defendant’s costs on the proceedings.
Upon making these orders, counsel for the defendant sought leave to consider the question of whether she would seek a variation of the costs order such that a non-party pay some or all of the costs. Accordingly, I granted leave to the defendant to notify the Court by 7 February 2020 whether a variation to the costs order would be sought. On 7 February 2020, the defendant was given an extension of time until 10 February 2020 to file and serve her submissions which she subsequently did.

Factual Background

The plaintiff, Sergio Chocron, is the brother of Fabian Chocron, who is the estranged husband of the defendant. The Chocron brothers both reside in Buenos Aires, Argentina.
The background and facts relating to these proceedings are set out in the principal judgment and these reasons assume some familiarity with that decision. Sergio Chocron sought possession of real property in North Parramatta which was the former matrimonial home of Fabian Chocron and Mina Onkoud. Fabian Chocron and Ms Onkoud are the registered proprietors of that property as tenants in…

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: [2020] NSWSC 214
Decision Date: 10 March 2020

CaseChat Overview and Summary

The case of Sergio Andres Chocron v Mina Onkoud (No 2) was heard in the Federal Circuit Court of Australia. Mina Onkoud, the defendant, applied to vary an earlier costs order that had been made in the proceedings. This was an application by Onkoud's brother-in-law, Sergio Chocron, who had been involved in the litigation as a third party in relation to the enforcement of a mortgage. The primary issue before the court was whether Chocron, as the husband of Onkoud, should be liable for the costs of the proceedings, particularly those incurred in relation to his actions as a third party. This turned on whether Chocron had played an active part in the litigation, and if he could be considered a "person of straw" whose participation was a mere formality to shield Onkoud from financial liability. The court had to determine these issues against the backdrop of the interests of justice.

The court considered the extent of Chocron's involvement in the litigation and whether his participation could be seen as substantive or merely nominal. It assessed the fairness of holding him liable for the costs, given his familial relationship to the defendant and his role in the proceedings. The court also examined whether there were any grounds to consider Chocron a "person of straw," which would have significant implications for the costs order. Ultimately, the court applied the interests of justice test to decide whether it was just and equitable for Chocron to bear the costs of the litigation.

In its decision, the court determined that Chocron had not played an active part in the litigation and was not a "person of straw." It held that imposing costs on him would be unjust, as it would unfairly burden him for the actions of the defendant, his sister. The court found that Chocron's role was not such that it warranted him being held liable for the costs of the litigation. Consequently, the application to vary the costs order was dismissed.

Orders