State of New South Wales v Abed (No 2)

The case involved an appeal and cross-appeals concerning costs orders made in the District Court and on appeal. The primary dispute revolved around the reasonableness of rejecting an offer of compromise made by the State of New South Wales to Ms Abed, and the subsequent allocation of costs between the parties, including the State, Ms Abed, and Mr and Ms Younis. The proceedings were heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether Ms Abed's rejection of the State's offer of compromise was unreasonable, thereby impacting the costs order under rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW). Additionally, the court had to consider the appropriate basis for awarding costs on an ordinary party-and-party basis, particularly where a party was unsuccessful on the main issue of an appeal but partially successful on other grounds. The court also had to decide whether to grant a certificate under the Suitor's Fund Act 1951 (NSW) and whether to remit the matter to the District Court for determination of ownership of funds paid into court.

The Court of Appeal reasoned that Ms Abed had achieved a better outcome than the offer of compromise, rendering her rejection of that offer reasonable. However, the court found that Ms Abed was unsuccessful on the main issue of the appeal, although she had some success on other aspects of her cross-appeal. The court refused to grant a certificate under the Suitor's Fund Act, noting that the respondent's fabricated complaint formed the basis of the civil proceedings and that the respondent had defended the claim on inherently untrue evidence. The court also determined that no order was necessary to remit the matter to the District Court regarding the funds paid into court.

Consequently, the Court of Appeal made specific orders regarding the payment of costs. Ms Abed was ordered to pay 75% of the State's costs of the appeal and her cross-appeal. Mr and Ms Younis were ordered to pay a significant portion of Ms Abed's costs of their respective cross-appeals, and Ms Younis was ordered to pay the entirety of the State's costs of the proceedings in the Court of Appeal. Orders were also made concerning the costs of the proceedings below, with the State to pay a portion of Ms Abed's costs and Ms Younis to pay the State's costs.