Tarabay v Bechara - [2010] NSWSC 202

No judgment structure available for this case.

CITATION: Maurice Tarabay v Licha Bechara & Ors [2010] NSWSC 202

HEARING DATE(S): 15/03/10, 16/03/10

JUDGMENT DATE :
23 March 2010

JURISDICTION: Equity

JUDGMENT OF: Windeyer AJ at 1

DECISION: See paragraph 39 of the judgment.

CATCHWORDS: COSTS - whether costs incurred without reasonable cause - whether solicitor for plaintiff to indemnify successful defendants.
LEGAL PRACTITIONERS - statutory power to order costs against practitioner - prospects to be fairly arguable - costs order discretionary - Civil Procedure Act 2005, sections 99(1)(b) and 99(2)(c).

LEGISLATION CITED: Civil Procedure Act 2005
Corporations Act 2001
Legal Profession Act 1987
Legal Profession Act 2004
Trade Practices Act 1974

CATEGORY: Procedural and other rulings

CASES CITED: Degiorgio v Dunn (No.2) (2005) 62 NSWLR 284
Ideal Waterproofing Pty Ltd v Buildcorp Australia Pty Ltd [2006] NSWSC 155
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300
Ridehalgh v Horsefield [1994] Ch 205
Whyked Pty Ltd v Yahoo! 7 Pty Ltd [2008] NSWSC 477

PARTIES: Plaintiff/Respondent-Maurice Tarabay
Defendants/Claimants-Licha Bechara & Ors

FILE NUMBER(S): SC 2005/271046

COUNSEL: Plaintiff/Respondent-DR Pritchard SC (23rd Respondent)
Defendants/Claimants-P Bates

SOLICITORS: Plaintiff/Respondent-Andrew Murray, DLA Phillips Fox (23rd Respondent)
Defendants/Claimants-Maria Bechara, Bechara & Company

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

WINDEYER AJ

TUESDAY, 23 MARCH 2010

2005/271046 MAURICE TARABAY v LICHA BECHARA & ORS

HIS HONOUR :

1 Claim: By amended notice of motion the successful defendants in this action seek an order under sections 99(1)(b) and 99(2)(c) of the Civil Procedure Act 2005 (“the CPA”) that Mr Campbell-Williams the twenty third respondent indemnify the defendants against the costs payable by them jointly or severally to their solicitors and counsel incurred, and reasonably incidental to the proceedings from 9 August 2006 to 8 November 2006, such costs and disbursements not to exceed the costs otherwise payable by the plaintiff to the defendant on a party and party basis as agreed or assessed.

2 The relevant parts of s 99 of the CPA are as follows:

“99 Liability of legal practitioner for unnecessary costs

(1) This section applies if it appears to the court that costs have been incurred:
(b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible.

3 It was not argued that “costs payable” did not include costs already paid. That is the only sensible construction available. The definition of “costs” under section 3 of the CPA includes disbursements.

4 The limitation of the claim to party and party costs appears on the wording of the sections to be a concession on behalf of the applicants but that is the order sought.

History of the Motion

5 Under the original Notice of Motion orders were sought under section 99(1) of the CPA and section 348 of the Legal Profession Act 2004 that twenty six respondents pay the defendants’ costs of the proceedings. Those respondents were:

(a) Numbers 1 to 22 partners of Mr Campbell-Williams the twenty third respondent in the law firm in which he was a member;

(b) Number 23 Mr Campbell-Williams the solicitor having the conduct of the proceedings for the plaintiff for a period which ended on 6 November 2006 that being the reason for the closed period referred to in the Amended Summons;

(c) Number 24 the solicitor who took over conduct of the proceedings from Mr Campbell-Williams;

(d) Number 25 Senior Counsel for the plaintiff in the proceedings;

6 The claims against the first to twenty second respondents have been discontinued. The claim against the second solicitor and senior and junior counsel have been settled either with the motion against them being dismissed or to be dismissed. The claim under section 348 of the Legal Profession Act has been abandoned. So far as the remaining claim under section 99(1)(b) is concerned it is not claimed that the remaining respondent acted improperly. What is claimed is that costs have been incurred without reasonable cause in circumstances for which Mr Campbell-Williams is responsible.

7 So far as the costs of the first to twenty second respondents are concerned, it is agreed that if the applicant on this Notice of Motion succeeds there should be no order as to their costs on discontinuance, but if this Motion fails then their costs should be part of the costs of the successful remaining respondent.

History of Original Action

8 The proceedings commenced by Summons filed on the 2 December 2005, with Mr Tarabay as plaintiff and a company Fifty Property Investments Pty Ltd (“FPI”) as the defendant. The claim was for unpaid costs of building work the plaintiff claimed owing to him by the defendant under a contract made in January 2004. The original claim was for damages of $1,103,314.00 being the difference between a contract sum and variations, in all totalling $8,196,203.00 and an amount paid of $7,092,889.00. The simple claim was that the defendants’ refusal to pay the balance of the amount claimed was a repudiation of the contract accepted by the plaintiff who accordingly rescinded the contract. There was an alternative claim for the same amount on a quantum meruit basis.

9 In its response to the Summons filed on 27 February 2006, FPI denied that it entered into a contract with the plaintiff. It claimed that it entered into a contract with a company M & L Tarabay Pty Ltd in 2002.

10 M & L Tarabay Pty Ltd was de-registered in 2003. The building works were not commenced until after the de-registration took place. In his judgment Hammerschlag J held that the contract was entered into in 2002 but it was entered into between the plaintiff and FPI.

11 The building contract was for the construction of 42 townhouses on land in Ashfield. There was a mortgage loan which was in default by 7 February 2006. With the consent of the mortgagee, FPI in 2006 sold 21 of the townhouses to Herberton Enterprises Pty Ltd (“Herberton”) whose controllers were closely associated with FPI. The plaintiff and Mr Campbell-Williams considered the sales were at an undervalue of about 2 million dollars. The plaintiff did not find out about the sales until July 2006. He then sought an interlocutory injunction against FPI and Herberton to prevent disposal of the remaining units. On 18 August 2006 Bergin J granted an interlocutory injunction up to 8 September 2006 restraining FPI from disposing of any further units without giving 21 days’ notice of intention to do so to the plaintiff and restraining Herberton from dealing with the units it had purchased without giving 21 days’ notice of intention to do so to the plaintiff. At the hearing before Bergin J on 18 August 2006 it was flagged that a claim might be made under section 37A of Conveyancing Act 1919 to set aside the sale of the 21 units to Herberton. Her Honour ordered that an Amended Summons be filed by the 7 September prior to a directions hearing which was to take place on 8 September.

12 An administrator was appointed to the company on the 24 August 2006 pursuant to section 436A of the Corporations Act 2001. The administrator reported to the second meeting of creditors held on 20 September 2006. He stated that he considered that the company was insolvent and recommended that it should be wound up. The creditors voted accordingly. The action against the company thereupon became stayed unless and until leave to continue the proceedings was obtained.

13 The appointment of an administrator and the subsequent winding up required the plaintiff and his advisors to consider whether an application for leave to continue the proceedings should be made and whether a section 37A claim should be made or whether some different claim should be pursued.

14 On 21 September 2006 Mr Campbell-Williams forwarded a draft Amended Summons to the solicitors then acting for the defendants who had stated that they would accept service on behalf of any members of the Bechara family joined or proposed to be joined. The draft retained FPI as the defendant but proposed to add five members of the Bechara family as additional defendants together with Herberton as the final defendant.

15 On 22 September 2006, leave was granted to file an Amended Summons by 5 October 2006. There was no objection to this or to the draft Summons which had been presented. On 6 October Bergin J gave leave to discontinue the proceedings against FPI and leave to file an Amended Summons in court. Under the Amended Summons the first and second defendants are Licha Bechara and Cameel Bechara the directors and shareholders of FPI. The third defendant, Maria Bechara is a solicitor. It was claimed in the proceedings that she was a director of FPI though not having been formally appointed. The fourth defendant Giselle Bechara was at the relevant time the sole director and secretary of Herberton and the fifth defendant Dianne Bechara was the sole shareholder of Herberton. The defendants so far named are all siblings. Herberton was the trustee of a trust called the MGD Trust under which Maria, Giselle and Dianne were the beneficiaries.

Claims under the Amended Summons

16 So that the basis of the present Motion can be understood it is necessary to set out some parts of the Amended Summons. The plaintiff claimed declarations as follows:

the Works

the Contract

2. The plaintiff has carried out contract works including variations to the Scope of Works, pursuant to the Contract, to a value of $8,838,835.

3. Fifty Property Investments Pty Ltd has paid to the Plaintiff the sum of $7,092,889 and, in breach of its obligations under the Contract, has failed and refused to pay to the Plaintiff the balance of $1,745,946.

4. By its conduct in October and November 2005 Fifty Property Investments Pty Ltd evinced an intention to no longer be bound by the terms of the Contract, and such conduct amounted to a repudiation of the Contract by Fifty Property Investments Pty Ltd.

5. On 7 November 2005 the Plaintiff accepted Fifty Property Investments Pty Ltd’s repudiation of the Contract and rescinded the Contract and notified Fifty Property Investments Pty Ltd thereof.

6. As a result of Fifty Property Investments Pty Ltd’s repudiation the Plaintiff suffered loss and damage in the sum of $1,745,946.

Trade Practices Act

9. The Plaintiff claims from the First, Second, Third, Fourth, Fifth and Sixth Defendants:

(i) Damages $1,745,946.

Civil Procedure Act

(iii) Costs.”

17 The claimed damages of $1,745,946.00, was an amended claim of the unpaid costs of the building work.

18 In Annexure A to the Amended Summons which is the Technology and Construction List Statement, Part A sets out the nature of the plaintiff’s claim. The relevant parts are paragraphs 1 to 6 which in summary state:

19 Paragraphs 9 and 10 are then as follows:

“9. The conduct of Fifty Property Investments Pty Ltd as referred to in paras 4, 5 and 6 above, was unconscionable and contrary to the provisions of s 51AA of the Trade Practices Act 1974 causing loss to the Plaintiff in the nature and extent of unpaid sums under the contract, alternatively the value of work done and materials provided upon a quantum meruit.

Trade Practices Act

20 Paragraph 11 to 21 deal with the claim of sale to Herberton at an undervalue. It is convenient to set out paragraphs 16 to 21:

17. The sales referred to in paragraph 16 above were for a total of $8,645,000, which was approximately $2.7 million lower than their total market valuation of $11,353 million.

18. Further, $2,039,038 of the sale price was not paid by Herberton to the Plaintiff, but it was paid to or for the benefit of Giselle, Dianne and Maria Bechara, and Herberton, purportedly in repayment of moneys previously paid or advanced by them to or on behalf of Fifty Property Investments Pty Ltd.

19. The reason, or one of the reasons, for the sale of the 21 units referred to in para 17 above, and for non-payment by Herberton to the Plaintiff of the $2,039,038 referred to in para 18 above, was to prevent the Plaintiff from recovering any moneys due to him by Fifty Property Investments Pty Ltd for his building works at 403-409 Liverpool Road, Ashfield, pursuant to the contract.

Trade Practices Act

21 Part C of the Statement is headed ‘Plaintiff’s Contentions’. This is really the statement of claim to which the defendants’ response is directed. It pleads facts to justify the relief claimed. In particular it alleges facts:

(a) to support the claim the contract was with the plaintiff;

Trade Practices Act

22 I should add here that the defendants did not contest the s75B part of the claim. In other words, they accepted if FPI were liable for unconscionable conduct then they would be caught pursuant to s75B.

23 Mr Campbell-Williams ceased to act for the plaintiff on 8 November 2006 and a new solicitor was retained. That is the reason the costs claimed under s99 extend only to that date. So far as the starting date is concerned the claim for commencement on 9 August 2006 is made on the basis that Herberton was a respondent to the Motion for an interlocutory injunction. At that stage Herberton was not a defendant. Its costs as a respondent were reserved and a procedure put in place to apply for them but that was never done. I consider that the present claim under s99 could not extend to the earlier proceedings, but if it could, I would find that there was reasonable cause to bring the injunction application. It follows that the commencing date for any order, if the applicants are successful, should be the date on which they were served with the proposed Amended Summons, namely 21 September 2006. There is in evidence a copy of the defendant’s bill of costs lodged for assessment. The costs claimed for the closed period come to approximately $30,000 to which GST would be added. The applicants claimed a figure of about $106,000 including claims for costs from 9 August to 22 September 2006. The total claim for the whole action is approximately $1,102,000 plus interest.

Trial

24 The action was heard by Hammerschlag J over 10 days between 1 to 18 June 2009 and judgment was delivered on 3 July 2009. The plaintiff’s claims were dismissed with costs. An application was made for indemnity costs and costs on that basis were ordered from 15 April 2009 on the claims relevant to the present Motion. The third claim tried did not involve Mr Campbell-Williams. His Honour held that upon consideration of a letter from the defendants’ solicitors of 15 April 2009, the plaintiff should have realised then, if not earlier, that he had no prospect of success and that the case was hopeless.

25 In his judgment of 3 July 2009 his Honour found that there was a written building contract between the plaintiff and FPI dated 31 January 2002. As to the first claim as to denial of the contract his Honour set out the plaintiff’s argument in paragraph 114 of his judgment as follows:

“114. It was put as follows:

a the Company’s denial that the plaintiff was the builder under the building contract was unconscionable because it was a departure, or an attempt to depart, unconscientiously from the subject matter of an assumption which the plaintiff had adopted, namely that the building contract was between him personally and the Company, such as would give rise to an estoppel precluding the Company from denying that the plaintiff was the builder;

b the unconscionable denial was one of the reasons the Company failed or refused to pay the plaintiff the amount owed to him under the building contract;

c the plaintiff suffered loss “by” that conduct, the loss being the amount owed to him under the building contract as at 28 October 2005 when the Company made its denial; and

d Cameel, Licha and Maria aided and abetted the Company’s contravention or were directly or indirectly knowingly concerned in and party to it and are therefore personally liable for the plaintiff’s loss.”

26 It is not necessary to go into the matter in detail. His Honour stated at paragraph 139 that “estoppel precludes departure from an assumption” but to operate the assumption would have to be that there was a contract where there was not one. In the case in question there was a contract so that estoppel did not arise.

27 Paragraph 142 and 143 of the judgment are as follows:

“142. The plaintiff’s problem stems from the fact that he is, contrary to established authority and principle, seeking to rely on an unconscientious departure from an assumption as an independent cause of action when his true case is one in contract. Recourse to s 51AA(1) of the Act does not overcome this intrinsic difficulty.

28 His Honour went on to consider whether if the conduct complained of had fallen within section 51AA(1) of the Trade Practices Act it caused the plaintiff any loss. In brief, he held it did not because the denial of the contract did not cause detriment, as by then the work was done for which the plaintiff was entitled to be paid. The denial did not preclude the right to sue the company. The loss occurred because the company would not or could not pay and went into liquidation.

29 There was no consideration in the judgment of the undervaluation claim as this was abandoned during final submissions. There is no evidence of the reasons for abandonment other than that his Honour said it faced serious difficulties. I gathered from the submissions before me this was because the plaintiff could not prove sale at an undervalue.

Consideration of the Section 99 Claim

30 Two matters should be dealt with at the start. First the applicants do not claim improper conduct in the incurring of costs. The claim is that the costs have been incurred without reasonable cause. The second matter is that the Counsel for the applicant stated at the outset that he did not contend that the claims for unconscionable conduct had no basis or were made without reasonable cause: what was claimed was that no action based on unconscionable conduct could succeed because no damage resulted. Even if unconscionable conduct were to have been established and was made out accordingly, the action was brought without reasonable cause.

The law

31 I was taken to numerous cases many of which were clearly dependent on particular facts and dealt with claims to which section 99(1)(a) would be relevant rather than s. 99(1)(b). Again many of the cases were based upon section 348 of the Legal Profession Act and its predecessor 198M of the Legal Profession Act 1987. While the wording may be a little different, at least for the purposes of the instant application, I consider the principles applicable here, were established and set out in Ridehalgh v Horsefield [1994] Ch 205, Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300, Degiorgio v Dunn(No.2) (2005) 62 NSWLR 284, Ideal Waterproofing Pty Ltd v Buildcorp Australia Pty Ltd [2006] NSWSC 155 and Whyked Pty Ltd v Yahoo! 7 Pty Ltd [2008] NSWSC 477. The decision of Barrett J in Degiorgio was accepted by McColl JA in Lemoto at paragraph 132. Barrett J had held that the phrase in section 198 of the Legal Profession Act 1987 “without reasonable prospect of success” is the equivalent of ”so lacking in merit or substance as to the not fairly arguable”, I proceed on that basis although “reasonable cause” and “reasonable prospects of success” may not be precisely the same and the former may give more latitude. Litigants must be able to bring forward cases which do not appear strong but which could possibly succeed. They should not be allowed to bring forward cases which are unarguable. The provisions in the Legal Profession Act about provable facts are not included in section 99.

32 The evidence of the applicants, apart from the judgments, is contained in the affidavit of Maria Bechara sworn 30 July 2009 which had exhibited to it much of the material put forward by the parties in preparation for and during the trial. Much of it was relevant to the discontinued claims against the respondents other than Mr Campbell-Williams and was not relevant to the conduct of Mr Campbell-Williams at the time he was engaged in the proceedings. The question to be determined is whether Mr Campbell-Williams acted without reasonable cause, in bringing forward a case which although there was accepted to be a proper argument as to unconscionability, an essential element, namely that such conduct caused damage to the plaintiff, was an element which could not be established.

33 In his affidavit sworn 5 November 2009, Mr Campbell-Williams dealt with the question of damages as follows:

“98. The Amended Summons and Technology and Construction List Statement did not expressly specify the provisions of the TPA under which Mr Tarabay sought damages. It was my belief at the time that I certified the pleading that, if successful in his claims pursuant to section 51AA(1) and 75B(1) of the TPA, Mr Tarabay would have been entitled to an award of damages pursuant to section 82(1) of the TPA or compensation pursuant to section 87(1) of the TPA.

99.1 But for FPI’s denial of the existence of the building contract with Mr Tarabay, FPI would have been required to pay Mr Tarabay those amounts to which he was entitled under the contract; and

99.2 By denying the existence of the contract and by disposing of assets of FPI at an undervalue to a related entity (i.e Herberton), it was in my view reasonably arguable that the conduct of FPI, Herberton and those parties knowingly involved in such conduct, deprived Mr Tarabay of the likely benefit of the contractual entitlement to payment by FPI.

a

I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited

a

34 The affidavit deposed to conferences with his client, his client’s wife and Senior Counsel as to options for further conduct of the proceedings in light of the winding up of FPI. Mr Campbell-Williams said in paragraphs 70 and 71:

“70. I was receptive to causes of action which did not involve Mr Tarabay seeking to proceed against FPI once it was in liquidation because I believed that leave to proceed would be necessary and unlikely to be obtained. I also believed that the outcome of any process of adjudication of a liquidator’s proof of debt claim lodged in the winding up of FPI would be uncertain, particularly in circumstances in which FPI may have had few assets available to unsecured creditors.

Veolia Water Solutions v Kruger Engineering-

35 The Amended Summons was prepared by Senior Counsel, reviewed by Mr Campbell-Williams and discussed by him with Senior Counsel who he said appeared to grasp the factual and legal issues and be attentive to the matter. Mr Campbell-Williams had briefed this particular Senior Counsel regularly over twenty years and as result of this experience with him regarded him as a very prudent, conservative and diligent barrister “who gives great attention to detail and demonstrates a thorough knowledge of legal principles associated with matters on which he works”.

36 Mr Campbell-Williams was cross-examined by Mr Bates, Counsel for the applicants at considerable length on the question of loss. Some of this was directed to the fact that the actual loss sought to be recovered had been incurred before the unconscionable conduct claimed occurred. While there can be no doubt that the damages claim, being the amount unpaid for the contract work, was not a particularly sensible way of going about the matter the respondent continued to say that it was his view that there was a proper case that the denial of the contract was unconscionable and improper. This was because the denial caused delay in the plaintiff being able to obtain moneys due to him and enabled FPI to dispose of its assets at an undervalue bringing about the result that FPI did not have sufficient funds to satisfy the claim of the plaintiff. Mr Campbell-Williams continued to say that he considered this to be a proper basis for the claims and so did his Senior Counsel.

37 While in hindsight it may appear to be reasonably clear that this was not a claim which was likely to succeed, it must be remembered that the claim was brought as a matter of some urgency at a time when the plaintiff’s real claim was unlikely to produce any results. In other words the plaintiff and his lawyers were searching for some means of recovering his loss. In hindsight it seems at least, as the case was articulated, that it was unlikely to succeed but I am not satisfied that Mr Campbell-Williams did not have a firm belief that the claim was a claim which could be brought, particularly, as on the advice of Senior Counsel it was a claim properly made. It may well have been the position that at some stage further down the track it should have become clear that the case was quite unlikely to succeed particularly on the basis upon which it was ultimately put forward as set out earlier in this judgment. It has been said on many occasions the power to grant relief claimed here must be exercised with considerable caution and not with the benefit of hindsight. I have little doubt that even at the time the claim was brought it was a claim which was not likely to succeed but I cannot find that at the time it was brought without reasonable cause.

38 I should say that if I were not of that view then as a matter of discretion I would not have made the orders sought. That is because while a solicitor is required to give independent consideration to the actions he is taking, he is nevertheless entitled to take the advice of Senior Counsel and to take act upon that advice unless his consideration of it should show that it was clearly wrong. At this early stage of the action it seems to me that it was reasonable for him to rely upon that advice and as a matter of discretion, I would not make the orders sought: see Whyked at [182] An additional factor on discretion but one which is less significant is that the claim against the Senior Counsel who appeared throughout was settled for $700,000. It would be difficult to ascribe some figure to the respondent when this could result in some double payment for the period when both were engaged.

Orders

39 The result of this is that the Notice of Motion against the twenty-third respondent should be dismissed with costs. In accordance with the agreement made, those costs are to include the costs of the first to twenty-second respondents to the date of the discontinuance against them.

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Citations

Maurice Tarabay v Licha Bechara [2010] NSWSC 202

Most Recent Citation

HKD v State of Queensland [2025] QDC 174

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Statutory Material Cited

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Ideal Waterproofing Pty Ltd v Buildcorp Australia Pty Ltd [2006] NSWSC 155

Whyked Pty Ltd v Yahoo!7 Pty Ltd [2008] NSWSC 477

Lemoto v Able Technical Pty Ltd [2005] NSWCA 153

CITATION:	Maurice Tarabay v Licha Bechara & Ors [2010] NSWSC 202
HEARING DATE(S):	15/03/10, 16/03/10
JUDGMENT DATE :	23 March 2010
JURISDICTION:	Equity
JUDGMENT OF:	Windeyer AJ at 1
DECISION:	See paragraph 39 of the judgment.
CATCHWORDS:	COSTS - whether costs incurred without reasonable cause - whether solicitor for plaintiff to indemnify successful defendants. LEGAL PRACTITIONERS - statutory power to order costs against practitioner - prospects to be fairly arguable - costs order discretionary - Civil Procedure Act 2005, sections 99(1)(b) and 99(2)(c).
LEGISLATION CITED:	Civil Procedure Act 2005 Corporations Act 2001 Legal Profession Act 1987 Legal Profession Act 2004 Trade Practices Act 1974
CATEGORY:	Procedural and other rulings
CASES CITED:	Degiorgio v Dunn (No.2) (2005) 62 NSWLR 284 Ideal Waterproofing Pty Ltd v Buildcorp Australia Pty Ltd [2006] NSWSC 155 Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 Ridehalgh v Horsefield [1994] Ch 205 Whyked Pty Ltd v Yahoo! 7 Pty Ltd [2008] NSWSC 477
PARTIES:	Plaintiff/Respondent-Maurice Tarabay Defendants/Claimants-Licha Bechara & Ors
FILE NUMBER(S):	SC 2005/271046
COUNSEL:	Plaintiff/Respondent-DR Pritchard SC (23rd Respondent) Defendants/Claimants-P Bates
SOLICITORS:	Plaintiff/Respondent-Andrew Murray, DLA Phillips Fox (23rd Respondent) Defendants/Claimants-Maria Bechara, Bechara & Company