Taouk v Ho (No. 2) - [2018] NSWSC 1942

Supreme Court

New South Wales

Medium Neutral Citation: Taouk v Ho (No. 2) [2018] NSWSC 1942
Hearing dates: On the papers
Date of orders: 14 December 2018
Decision date: 14 December 2018
Jurisdiction: Common Law
Before: Johnson J
Decision:
An order is made that Mr Taouk pay Ms Ho’s costs of the proceedings in this Court on an indemnity basis.

Catchwords: PRACTICE AND PROCEDURE – costs – application for indemnity costs by successful Defendant – unmeritorious arguments advanced by Plaintiff – failure by Plaintiff to comply with obligations under s.56 Civil Procedure Act 2005 – unreasonable conduct of Plaintiff – costs awarded on indemnity basis
Legislation Cited: Civil Procedure Act 2005
Cases Cited: Taouk v Ho [2018] NSWSC 1954
Texts Cited: ---
Category: Costs
Parties: Joseph Taouk (Plaintiff)
Yuen Min Ho (Defendant)
Representation:
Counsel:
Mr H Ekes (Solicitor) (Plaintiff)
Mr R Freeman (Defendant)
Solicitors:
Gardner Ekes Lawyers (Plaintiff)
Scarfone & Co (Defendant)

File Number(s): 2018/110582
Publication restriction: ---

Judgment

JOHNSON J: On 6 December 2018, I gave judgment in this matter dismissing the Amended Summons and making an order that Mr Taouk pay Ms Ho’s costs of the proceedings: Taouk v Ho [2018] NSWSC 1954. At the conclusion of the judgement (at [121]-[122]), I stated that if Ms Ho seeks an order for costs on a special basis (other than the ordinary basis), a written submission should be furnished in support of that application.
Mr Freeman, counsel for Ms Ho, has made application that Mr Taouk pay Ms Ho’s costs of the proceedings on an indemnity basis. In written submissions dated 10 December 2018, Mr Freeman relied upon a number of findings and statements made by the Court in the judgment dismissing the Amended Summons. In summary, Mr Freeman submitted that costs of the appeal should be ordered on an indemnity basis in circumstances where Mr Taouk:

prosecuted clearly unmeritorious arguments in the appeal;

failed to ensure proper compliance with the appeal process;

had demonstrated deliberate, obstinate and flagrant breaches of the overriding purpose under s.56 Civil Procedure Act 2005 without regard to the consequences to Ms Ho or the effect upon the judicial system.

Mr Freeman submitted, as well, that the approach of Mr Taouk to the litigation had the effect that the overall costs bill incurred by Ms Ho was well in excess of the amount in issue. He pointed, as well, to the impact of wasted costs in the proceedings.
In written submissions dated 13 December 2018, Mr Ekes, solicitor for Mr Taouk, submitted that no basis had been established by Ms Ho for a costs order on an indemnity basis. It was submitted that the grounds were reasonably arguable and that there was no relevant delinquency to found an order for indemnity costs.
In determining one of the grounds of appeal which alleged error of law on the part of the Magistrate in ordering Mr Taouk to pay costs on an indemnity basis in the Local Court, I outlined the principles with respect to indemnity…

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 Taouk v Ho (No. 2)

Details

AGLC: Taouk v Ho (No. 2) [2018] NSWSC 1942
Case: [2018] NSWSC 1942
Decision Date: 14 December 2018

CaseChat Overview and Summary

In the matter of Taouk v Ho, the dispute centred on an application for indemnity costs by the successful defendant. The plaintiff, Taouk, had been involved in a legal battle with Ho, which ultimately concluded with the defendant prevailing. The court had to address whether the defendant's application for indemnity costs, based on the plaintiff's unmeritorious arguments and unreasonable conduct, should be granted. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiff's conduct warranted the imposition of indemnity costs under the Civil Procedure Act 2005. The court needed to determine if the plaintiff had acted unreasonably and advanced arguments that were without merit, thereby justifying an indemnity costs order. The court also had to assess whether the plaintiff had failed to comply with the obligations outlined in section 56 of the Act, which pertains to the court's discretion in awarding costs.

The court found that the plaintiff's conduct was unreasonable and that the arguments presented were unmeritorious. The plaintiff had failed to adhere to the obligations under section 56 of the Act, which mandates that parties act in a manner that promotes the just and expeditious disposal of the case. Given these findings, the court concluded that the plaintiff's conduct warranted the imposition of indemnity costs on the defendant. The court awarded the defendant indemnity costs, reflecting the unreasonableness and lack of merit in the plaintiff's arguments.

The final orders of the court mandated that the plaintiff pay the defendant's costs on an indemnity basis, underscoring the unreasonableness and unmeritorious nature of the plaintiff's conduct during the proceedings.

Orders