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
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
Texts Cited: Nil
Category: Costs Parties: Maria Shalhoub (plaintiff)
Sheila Pyper Royles (defendant)
Michael Joseph Johnson (defendant)Representation: Counsel:
Solicitors:
M Sahade (plaintiff)
R O’Gorman-Hughes (defendants)
Oliveri Lawyers (plaintiff)
Shaw Reynolds Lawyers (defendants)
File Number(s): 2023/00070380 Publication restriction: Nil
Judgment
The application before the court
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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…
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- AGLC
- Shalhoub v Johnson (No 2) [2024] NSWDC 10
- Case
- [2024] NSWDC 10
- Decision Date
CaseChat Overview and Summary
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
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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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