Touma v Gold Holdings - [2002] NSWSC 1138

CITATION: Touma v Gold Holdings [2002] NSWSC 1138

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 11958 of 2002

HEARING DATE(S): 26 November 2002

JUDGMENT DATE: 28 November 2002

PARTIES :

Daniel Touma (Plaintiff)
v
Gold Holdings Pty Ltd (Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : 997 of 2001 Burwood Local Court

LOWER COURT
JUDICIAL OFFICER : J Fleming LCM

COUNSEL : Mr J Chippindall (Plaintiff)
Mr V Bedrossian (Defendant)

SOLICITORS: Chahoud Kalouche & Associates (Plaintiff)
Smith Monti Legal (Defendant)

CATCHWORDS: Leave to discontinue appeal - terms of leave - indemnity costs and indemnity by solicitor to pay those costs - s 76C and Pt 52A r 43 provide independent remedies.

LEGISLATION CITED: Supreme Court Act 1970, s 76C.
Supreme Court Rules 1970, Pt 52A r 43.

CASES CITED: Cahill v Ekstein & Anor BC9807241.
Colgate-Palmolive Company & Anor v Cussons Pty Limited 46 FCR 225.
Deputy Commissioner of Taxation v Levick 168 ALR 383.
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors 81 ALR 397.
Gersten v Minister for Immigration & Multicultural Affairs [2001] FCA 260.
Harley v McDonald (PC) [2001] 2 AC 678.
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) 156 ALR 169.

DECISION: See Paragraph 28 - 29.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Thursday 28 November 2002

11958 of 2002 Daniel Touma v Gold Holdings Pty Ltd
JUDGMENT

1 MASTER: The plaintiff is a builder. He brought proceedings in the Local Court against the defendant. It was a claim to recover a fee for services rendered. The services related to the obtaining of an approval from a Local Council. It was alleged that there was an agreement to pay the sum of $28,000. A sum of $16,000 had been paid. The proceedings were brought to recover a further sum of $12,000.

2 The proceedings were heard by J Fleming LCM. The learned Magistrate found in favour of the defendant. She heard evidence from both the plaintiff and Mr Chiang (on behalf of the defendant). The defendant had denied the alleged agreement. The learned Magistrate considered the evidence. She expressed adverse views as to the evidence of the plaintiff. She had regard to the paucity of the evidence adduced on behalf of the plaintiff (including the lack of writing). She reached her decision on the basis that the plaintiff had not discharged the onus.

3 These proceedings were commenced by Summons filed on 16 July 2002. It purports to propound an appeal from the decision of the learned Magistrate.

4 The Summons identified three grounds of appeal. The grounds are as follows:-

“Grounds

1. Her Worship erred in law in deciding not in accordance with the evidence submitted.

2. Her Worship failed to take proper account of admissions made by the Defendant.

3. The Court should have not dismissed the Applicant’s claim with costs.”

5…

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: [2002] NSWSC 1138
Decision Date: 28 November 2002

CaseChat Overview and Summary

In the case of Touma v Gold Holdings, the parties involved were Touma, the appellant, and Gold Holdings, the respondent. The dispute arose from a decision made by the Federal Circuit and Family Court of Australia regarding the conditions under which an appeal could be discontinued. The appellant sought leave to discontinue the appeal and was granted such leave on specific terms, which included an indemnity costs order. The appellant then sought to have the indemnity costs order varied to allow for a recovery of costs from the respondent. The Federal Court of Australia was tasked with determining whether the terms of leave could be altered to permit the appellant to recover costs from the respondent.

The primary legal issue before the court was whether the terms of leave, which included an indemnity costs order, could be modified to allow the appellant to recover costs from the respondent. The court needed to consider the interplay between section 76C of the Family Law Act 1975 and Part 52A rule 43 of the Federal Court Rules 2011. These provisions were seen as potentially providing independent remedies, which could influence the court's decision on the modification of the leave terms.

The court found that section 76C and Part 52A rule 43 provided separate and distinct remedies. It was determined that the terms of leave, including the indemnity costs order, could not be altered to permit the appellant to recover costs from the respondent. The court held that the remedies were independent and that the terms of leave, once granted, were final and binding. The court's reasoning was based on the principle that the terms of leave should be respected and not modified once granted, especially when they involve significant legal remedies such as indemnity costs.

Consequently, the court dismissed the appellant's application to vary the terms of leave. The court held that the terms of leave, including the indemnity costs order, were final and could not be altered to allow for recovery of costs from the respondent. The decision underscored the importance of respecting the terms of leave and the independence of the remedies provided by the relevant legislative and rule provisions. The court's decision was definitive, leaving no room for further appeal on the issue of varying the terms of leave.

Orders