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Shalhoub v Johnson (No 2)

Shalhoub v Johnson (No 2)

Case [2024] NSWDC 10 7 February 2024

Costs

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Admissibility of Evidence

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Shalhoub v Johnson (No 2) [2024] NSWDC 10
Hearing dates: 07 February 2024
Date of orders: 07 February 2024
Decision date: 07 February 2024
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1)   By way of variation of order 2 of the orders of 13 December 2023, the plaintiff is to pay the defendants’ costs of these proceedings on the ordinary basis.
(2) The defendants’ applications for a gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) is refused.
(3)   The defendants’ application for further interest on the costs orders made on 28 June 2019 and 29 September 2020 is granted and the parties are to bring in Short Minutes of Order reflecting the mathematically agreed amounts for the periods identified in prayer 3 of the Notice of Motion up to the date of this judgment.
(4)   Each party is to pay their own costs of the Notice of Motion.
(5)   Notice of Motion otherwise dismissed.

Catchwords:
COSTS – application for gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) and for additional interest on the costs orders the subject of appeal – no issue of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 98, 101
Conveyancing Act 1919 (NSW), s 177

Cases Cited:
Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
Aidan Llewellyn trading as the Trustee for the House of Llewellyn v State of New South Wales (No 2) [2023] NSWSC 1597
Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863
Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586
Ferella v Stomo (No 2) [2017] NSWDC 61
Gabrielle v Abood (No 4) [2023] NSWCA 100
Ghosh v Miller (No 2) [2016] NSWSC 713
Hamod v New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738
In the matter of Fogo Brazilia Holdings Pty Ltd (in liq) [2022] NSWSC 1070
Lambert v Jackson [2011] FamCA 275
Latoudis v Casey (1990) 170 CLR 534
Shalhoub v Johnson [2020] NSWSC 1321
Shalhoub v Johnson (No 2) [2020] NSWSC 1506

Texts Cited:
Nil

Category: Costs
Parties: Maria Shalhoub (plaintiff)
Sheila Pyper Royles (defendant)
Michael Joseph Johnson (defendant)
Representation:
Counsel:
M Sahade (plaintiff)
R O’Gorman-Hughes (defendants)
Solicitors:
Oliveri Lawyers (plaintiff)
Shaw Reynolds Lawyers (defendants)

File Number(s): 2023/00070380
Publication restriction: Nil

Judgment

The application before the court

By Notice of Motion filed on 19 December 2023 the defendants, who were successful in defending an appeal from the Review Panel, now seek further orders as follows:

The Plaintiff is to pay the First and Second Defendants’ costs by way of a gross sum of $67,241.04 pursuant to section 98 of the Civil Procedure Act 2005 (NSW).

The Plaintiff is to pay the First and Second Defendants’ counsel’s costs of this application, in the gross sum of $1,500, pursuant to section 98 of the Civil Procedure Act.

The Plaintiff is to pay…

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 Shalhoub v Johnson (No 2)

Details

AGLC: Shalhoub v Johnson (No 2) [2024] NSWDC 10
Case: [2024] NSWDC 10
Decision Date: 07 February 2024

CaseChat Overview and Summary

Shalhoub v Johnson (No 2) was a case before the court where the plaintiff sought costs and interest related to a previous litigation. The defendants opposed the plaintiff’s application for gross sum costs and additional interest on prior costs orders. They argued that the plaintiff’s costs application was not warranted given the circumstances and outcome of the proceedings. The court was tasked with determining whether the defendants should be liable for the plaintiff’s costs on a gross basis and if further interest on the costs orders should be granted.

The legal issues before the court included whether the defendants were liable for the plaintiff’s costs on a gross basis under section 98(4) of the Civil Procedure Act 2005 (NSW) and if further interest on the costs orders was appropriate. The court also needed to determine if the defendants’ applications were justified and if any interest should be awarded from specific dates.

The court found that the plaintiff was not entitled to costs on a gross basis. It held that the circumstances did not support such an order and that the defendants’ conduct did not warrant a departure from the usual basis of costs. Regarding the application for additional interest, the court found that the defendants were entitled to interest on the costs orders from certain dates, as per the mathematically agreed amounts outlined in the Notice of Motion. The court granted this application and ordered the parties to reflect these amounts in Short Minutes of Order. The court dismissed the rest of the defendants’ applications and ordered each party to bear their own costs of the Notice of Motion.

In conclusion, the court ordered that the plaintiff pay the defendants' costs of the proceedings on the ordinary basis, refused the defendants' application for a gross sum costs order, and granted their application for further interest on the costs orders. The parties were directed to update the Short Minutes of Order to reflect the agreed interest amounts and each party was to bear their own costs of the Notice of Motion.

Orders

Orders of the court

(1) By way of variation of order 2 of the orders of 13 December 2023, the plaintiff is to pay the defendants’ costs of these proceedings on the ordinary basis.

(2) The defendants’ applications for a gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) is refused.

(3) The defendants’ application for further interest on the costs orders made on 28 June 2019 and 29 September 2020 is granted and the parties are to bring in Short Minutes of Order reflecting the mathematically agreed amounts for the periods identified in prayer 3 of the Notice of Motion up to the date of this judgment.

(4) Each party is to pay their own costs of the Notice of Motion.

(5) Notice of Motion otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

Shalhoub v Johnson (No 2) [2024] NSWDC 10

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 16 of 16 shown

Aidan Llewellyn trading as the Trustee for the House of Llewellyn v State of New South Wales (No 2)
[2023] NSWSC 1597 Para 15

…recently be the subject of analysis by Kunc J in Aidan Llewellyn trading as the Trustee for the House of Llewellyn v State of New South Wales (No 2) [2023] NSWSC 1597 and I gratefully borrow from his Honour’s summary of these at [7] ff.…
Shalhoub v Johnson
[2023] NSWDC 555 Para 7

…The plaintiff then appealed to the District Court. That appeal was dismissed: Shalhoub v Johnson [2023] NSWDC 555. I made the following orders in that judgment:…
Gabrielle v Abood (No 4)
[2023] NSWCA 100 Para 17

…is sufficient supporting documentation and a clear outline of how the sum in question is worked out. This was emphasized in Gabrielle v Abood (No 4) [2023] NSWCA 100 at [6], where the Court stressed both the discretionary nature of such orders and the need for fairness to both parties:…
In the matter of Fogo Brazilia Holdings Pty Ltd (in liq)
[2022] NSWSC 1070 Para 26

…t an uncommon problem with gross sum costs order applications. Similar difficulties arose in In the matter of Fogo Brazilia Holdings Pty Ltd (in liq) [2022] NSWSC 1070, where Williams J noted that not only was the information insufficient (in that, as is the case here, there was no clear request for a realistic sum)…
Ahern v Aon Risk Services Australia Ltd (No 2)
[2022] NSWCA 39 Para 16

…expense, delay and aggravation likely to be involved in a contested costs assessment process”: Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 at [15] (the Court), citing Hamod v New South Wale s [2011] NSWCA 375 at [816]-[817].…
Shalhoub v Johnson (No 2)
[2020] NSWSC 1506 Para 4

…Shalhoub v Johnson [2020] NSWSC 1321), Darke J dismissed the proceedings with costs. In a separate determination on costs ( Shalhoub v Johnson (No 2) [2020] NSWSC 1506), Darke J ordered the plaintiff to pay costs on an indemnity basis from the date of expiry of the defendants’ second Calderbank offer ( Calderbank v…
Shalhoub v Johnson
[2020] NSWSC 1321 Para 4

…tablished by s 177 of the Conveyancing Act 1919 (NSW) . Injunctive relief was also sought. In a judgment dated 29 September 2020 ( Shalhoub v Johnson [2020] NSWSC 1321), Darke J dismissed the proceedings with costs. In a separate determination on costs ( Shalhoub v Johnson (No 2) [2020] NSWSC 1506), Darke J ordered…
Ferella v Stomo (No 2)
[2017] NSWDC 61 Para 24

…rt must be satisfied that there is sufficient information before the court to enable determination of the costs. As I noted in Ferella v Stomo (No 2) [2017] NSWDC 61 at [34], this is generally done by the solicitor with conduct of the matter, with not only full disclosure of rates and the nature of work but also a…
Bechara trading as Bechara and Company v Bates
[2016] NSWCA 294 Para 69

…basis, the usual outcome is that the costs recovered represent a proportion in the range of 60 to 85% of the total costs incurred ( Bechara v Bates [2016] NSWCA 294 at [69]). Accordingly, in assessing the gross sum costs order, the Court should apply an “impressionistic” or “broad brush” approach in applying a disc…
Ghosh v Miller (No 2)
[2016] NSWSC 713 Para 25

…gross sum orders in other courts; I note that this was sufficient for Fullerton J to refuse to make a gross sum costs order in Ghosh v Miller (No 2) [2016] NSWSC 713. All I have is the bills sent to the clients and I do not consider this is sufficient information to determine how these costs are justifiable for a…
Bobb v Wombat Securities Pty Ltd (No 2)
[2013] NSWSC 863 Para 23

…ecognised where there has been a history of disputes and appeals: Lambert v Jackson [2011] FamCA 275 at [59]; Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863 at [8]. The history of these proceedings fall within these parameters, as is commonly the case where costs appeals come before the court for hearing.…
Hamod v New South Wales
[2011] NSWCA 375 Para 16

…osts assessment process”: Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 at [15] (the Court), citing Hamod v New South Wale s [2011] NSWCA 375 at [816]-[817].…
Lambert v Jackson
[2011] FamCA 275 Para 23

…ed as a gross sum rather than a further costs assessment is well recognised where there has been a history of disputes and appeals: Lambert v Jackson [2011] FamCA 275 at [59]; Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863 at [8]. The history of these proceedings fall within these parameters, as is common…
Harrison v Schipp
[2002] NSWCA 213 Para 22

…rocess where the court must be satisfied firstly that the circumstances of the case warrant the making of a gross sum costs order ( Harrison v Schipp (2002) 54 NSWLR 738 at [22]) and, secondly, that the court has sufficient information as to the quantum of the costs involved.…
Latoudis v Casey
[1990] HCA 59 Para 20

…der for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: Latoudis v Casey (1990) 170 CLR 534.…
[1975] 3 WLR 586
[1975] 3 WLR 586 Para 4

…o pay costs on an indemnity basis from the date of expiry of the defendants’ second Calderbank offer ( Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586).…

Legislation cited in this decision · 3

Civil Procedure Act 2005 (NSW)
101, 98 3 mentions (from Para 1)
Conveyancing Act 1919 (ACT)
177 2 mentions (from Para 4)
Married Persons (Equality of Status) Act 1996 (NSW)
1 mention

Medium Neutral Citation:	Shalhoub v Johnson (No 2) [2024] NSWDC 10
Hearing dates:	07 February 2024
Date of orders:	07 February 2024
Decision date:	07 February 2024
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) By way of variation of order 2 of the orders of 13 December 2023, the plaintiff is to pay the defendants’ costs of these proceedings on the ordinary basis. (2) The defendants’ applications for a gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) is refused. (3) The defendants’ application for further interest on the costs orders made on 28 June 2019 and 29 September 2020 is granted and the parties are to bring in Short Minutes of Order reflecting the mathematically agreed amounts for the periods identified in prayer 3 of the Notice of Motion up to the date of this judgment. (4) Each party is to pay their own costs of the Notice of Motion. (5) Notice of Motion otherwise dismissed.
Catchwords:	COSTS – application for gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) and for additional interest on the costs orders the subject of appeal – no issue of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 98, 101 Conveyancing Act 1919 (NSW), s 177
Cases Cited:	Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 Aidan Llewellyn trading as the Trustee for the House of Llewellyn v State of New South Wales (No 2) [2023] NSWSC 1597 Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863 Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586 Ferella v Stomo (No 2) [2017] NSWDC 61 Gabrielle v Abood (No 4) [2023] NSWCA 100 Ghosh v Miller (No 2) [2016] NSWSC 713 Hamod v New South Wales [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738 In the matter of Fogo Brazilia Holdings Pty Ltd (in liq) [2022] NSWSC 1070 Lambert v Jackson [2011] FamCA 275 Latoudis v Casey (1990) 170 CLR 534 Shalhoub v Johnson [2020] NSWSC 1321 Shalhoub v Johnson (No 2) [2020] NSWSC 1506
Texts Cited:	Nil
Category:	Costs
Parties:	Maria Shalhoub (plaintiff) Sheila Pyper Royles (defendant) Michael Joseph Johnson (defendant)
Representation:	Counsel: M Sahade (plaintiff) R O’Gorman-Hughes (defendants) Solicitors: Oliveri Lawyers (plaintiff) Shaw Reynolds Lawyers (defendants)
File Number(s):	2023/00070380
Publication restriction:	Nil