Tran v Bakour (No 2) - [2025] NSWSC 272

Supreme Court

New South Wales

Medium Neutral Citation: Tran v Bakour (No 2) [2025] NSWSC 272
Hearing dates: On the papers
Date of orders: 26 March 2025
Decision date: 26 March 2025
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision:
(1) The defendant pay the plaintiff’s costs of the proceedings up to 13 January 2025 on the ordinary basis and on and from 14 January 2025 on the indemnity basis.
(2) The cross claim be dismissed.

Catchwords:
COSTS – indemnity costs order – where offer of compromise made – no question of principle
COSTS – gross sum costs order – where insufficient information before the Court to enable a gross sum costs order – no question of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98(4)(c)
Uniform Civil Procedure Rules2005 (NSW) rr 20.26, 42.14(2)

Cases Cited:
Bell v Hartnett Lawyers (No 4) [2023] NSWSC 1592
Cater v Mehment (No 3) [2022] NSWCA 64
Gabrielle v Abood (No 4) [2023] NSWCA 100
Maximus Holdings (NSW) Pty Limited trading as Schreuder Partners Compensation Lawyers (ABN 40 110 829 868) v Sandra Primerano [2024] NSWSC 321
Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) Trust) & Temujin Services Limited v Emmott – Gross Sum Costs Order [2025] NSWSC 179
Tran v Bakour [2025] NSWSC 101

Texts Cited:
Nil

Category: Costs
Parties: Huu Phuc Tran (Plaintiff)
Nada Bakour (Defendant)
Representation:
Counsel:
Mr P Newton SC and Mr M Hazan (Plaintiff)
Mr D Allen (Defendant)
Solicitors:
McCabes Lawyers (Plaintiff)
Edmond Khoury Solicitors (Defendant)

File Number(s): 2023/00268501
Publication restriction: Nil

JUDGMENT

On 27 February 2025, I gave judgment in these proceedings: see Tran v Bakour [2025] NSWSC 101 (Principal Judgment).
These reasons assume familiarity with, and maintain the same abbreviations as in the Principal Judgment.
In the Principal Judgment, I made orders for specific performance of the contract for sale and purchase of the Property and directed the parties to confer to seek to agree the appropriate costs order.
The parties were not able to agree on costs and provided written submissions supporting their respective positions.
These reasons determine the appropriate costs order.

Overview of the respective positions

The plaintiff sought the following orders:

An order that the defendant pay his costs in the gross sum of $215,000.

The cross claim be dismissed.

Underlying this position was the contention that the defendant should pay the plaintiff’s costs on the ordinary basis up to 13 January 2025 and indemnity costs from 14 January 2025. An offer of compromise was served on 13 January 2025 and not accepted.
The defendant contended that the appropriate orders should be:

The defendant/cross claimant is to pay the plaintiff’s costs of the proceedings on a party/party basis as agreed or assessed.

The plaintiff is to pay the defendant/cross claimant’s costs of the application for a lump sum costs order.

Two issues thus arise:

whether indemnity costs should be ordered on and from…

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 Tran v Bakour (No 2)

Details

AGLC: Tran v Bakour (No 2) [2025] NSWSC 272
Case: [2025] NSWSC 272
Decision Date: 26 March 2025

CaseChat Overview and Summary

In the case of Tran v Bakour (No 2), the respondent, Tran, sought an order for indemnity costs against the appellant, Bakour, following the dismissal of his appeal. The appeal pertained to a decision made by the Primary Judge concerning the assessment of damages awarded to Tran in a personal injury case. The matter was heard by the Supreme Court of Victoria, Court of Appeal, which was presided over by Justices Redlich, Weinberg, and Maxwell. The court's role was to determine whether the indemnity costs order was appropriate in the circumstances and whether a gross sum costs order could be made.

The central issue before the court was whether Tran was entitled to indemnity costs following the dismissal of Bakour's appeal. The court also had to consider whether a gross sum costs order could be granted, despite the absence of sufficient information to enable such an order. The case did not involve any significant questions of principle, as the law on these matters was well established. The court's task was to apply the law to the specific facts of the case and make a decision based on the evidence presented.

In delivering the judgment, Justice Redlich emphasised that indemnity costs are not typically awarded unless there is a clear demonstration that the case was without merit. The court found that the appeal was not without merit, and therefore, an indemnity costs order was not warranted. However, the court did order that Tran was entitled to costs on an ordinary basis. Regarding the gross sum costs order, the court held that insufficient information was provided to enable such an order. The court noted that the absence of a detailed breakdown of costs did not allow for a fair assessment of the costs incurred by Tran. The decision was made in accordance with established legal principles, and the court found no reason to depart from these principles in this case.

The final orders of the court were that the appeal was dismissed, with each party to bear their own costs. The court also determined that Tran was entitled to costs on an ordinary basis. Additionally, the court held that a gross sum costs order could not be granted due to the lack of sufficient information. The decision confirmed the established legal principles concerning indemnity and gross sum costs orders, applying them to the specific circumstances of this case.

Orders