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Thaler v Amzalak (No 3)

Thaler v Amzalak (No 3)

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Case Copied 12 September 2013 56 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Thaler v Amzalak (No 3) [2013] NSWSC 1315
Hearing dates: 26 July 2013, 9 August 2013
Decision date: 12 September 2013
Jurisdiction: Common Law
Before: Schmidt J
Decision:
1. Mr Thaler and Mr Koncepolski must bear Mr Amzalak's costs of the two proceedings on an indemnity basis.
2. Enforcement of the order against Mr Koncepolski is stayed for 28 days from the date of this judgment.
3. All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

Catchwords:
PROCEDURE - costs - whether there should be any departure from the usual rule as to costs - whether successful party should be deprived of a costs order - whether indemnity costs order should be made against unsuccessful party and non-party - indemnity costs orders made

PROCEDURE - costs - motion seeking order against non-party - leave granted
EVIDENCE - tender of business records - question of authenticity - authenticity not established - s 69 of the Evidence Act 1995 - relevance - s 70 of Civil Procedure Act 2005 - relevance - documents not admissible
Legislation Cited: Civil Procedure Act 2005
Commercial Arbitration Act 1984 (repealed)
Evidence Act 1995
Uniform Civil Procedure Rules 2005
Cases Cited: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
Blazai Pty Ltd v Maclarens (No 2) [2013] NSWSC 31
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; (2001) 21 NSWCCR 389
Commonwealth Bank of Australia v Saleh [2007] NSWSC 990
Diamond v Baulkham Hills Shire Council [1999] NSWCA 277
FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
In the Matter of Maiden Civil Pty Ltd [2012] NSWSC 1618
Knight v FP Special Assets Ltd [1992] HCA 92; (1992) 174 CLR 178
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083
Timms v Commonwealth Bank [2003] NSWSC 576
Thaler v Amzalak (No 2) [2013] NSWSC 632
Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256; (2011) 288 ALR 385
Vitali v Stachnik [2001] NSWSC 303
Category: Costs
Parties:
Matter Number 2010/361581

Shlomo Thaler (Plaintiff)
Benjamin Amzalak (also known as Binyomin Zeev Amzalak) (Defendant)

Matter Number 2012/237826
Shlomo Thaler (Plaintiff)
Benjamin Amzalak (also known as Binyomin Zeev Amzalak) (First Defendant)
Chana Amzalak (Second Defendant)
Representation: Counsel:
Mr R Burton SC (Plaintiff and Mr Koncepolski)
Mr G Segal with Mr M A Friedgut (Defendant)
Solicitors:
Peter M Wayne & Associates (Plaintiff and Mr Koncepolski)

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.

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Details

Case: [2013] NSWSC 1315
Decision Date: 12 September 2013

CaseChat Overview and Summary

In Thaler v Amzalak (No 3), the primary dispute concerned the awarding of costs in a legal proceeding. The court was required to determine whether there should be any deviation from the standard rule regarding costs, specifically whether the successful party should be deprived of a costs order, and whether an indemnity costs order should be made against the unsuccessful party and a non-party. This decision was made in the context of a motion seeking an order against the non-party. The court also had to consider the admissibility of business records tendered as evidence, assessing whether the authenticity of the documents had been established under sections 69 and 70 of the Evidence Act 1995 and the Civil Procedure Act 2005.

The court examined the principles of cost allocation and the circumstances surrounding the case, including the conduct of the parties and the complexity of the litigation. It considered whether the successful party's conduct warranted a departure from the usual costs order and whether the non-party's involvement justified an indemnity costs order. The court concluded that the circumstances warranted a departure from the usual rule, leading to the granting of leave for the motion against the non-party. Additionally, the court found that the authenticity of the tendered business records had not been sufficiently established, rendering the documents inadmissible as evidence.

Following the reasoning, the court made an indemnity costs order against the unsuccessful party and the non-party, reflecting the complexity and the need for a fair outcome in the litigation. The court's decision underscored the importance of considering exceptional circumstances when determining cost orders and the admissibility of evidence. The final orders included an indemnity costs order against both the unsuccessful party and the non-party, highlighting the court's approach to cost management and the admissibility of business records in legal proceedings.

Orders