Yalda v Mshref (No 2) - [2021] NSWSC 951

Supreme Court

New South Wales

Medium Neutral Citation: Yalda v Mshref (No 2) [2021] NSWSC 951
Hearing dates: 2 June 2021
Date of orders: 2 August 2021
Decision date: 02 August 2021
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
THE COURT ORDERS THAT:
(1) The plaintiff is to pay the defendant’s costs of the appeal on an ordinary basis.

Catchwords:
COSTS – No point of principle

Legislation Cited:
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(b)
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4 20.26, 42.14
Local Court Act 2007 (NSW), s 41

Cases Cited:
Berrigan Doube Lawyers v Millar Eagger Pty Ltd [2016] NSWSC 235
Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266
Cretazzo v Lombardi (1975) 13 SASR 4
Falcetta v Commissioner of Taxation [2004] FCAFC 194
Guides Australia Inc v McMartin [2006] NSWCA 20
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
South Sydney Council v Walsh (No 2) [2003] NSWCA 111
Waters v PC Henderson (Australia) Pty Ltd (1994) 254 ALR 28

Category: Costs
Parties: Munerah Yalda (Plaintiff)
Tahani Mshref (Defendant)
Representation:
Counsel:
R Kumar (Plaintiff)
D Meyerowitz-Katz (Defendant)
Solicitors:
El Baba Lawyers (Plaintiff)
State Lawyers (Defendant

File Number(s): 2020/00254531
Publication restriction: Nil

Judgment

HER HONOUR: On 2 June 2021, I delivered judgment in Yalda v Mshref [2021] NSWSC 624. I made an order accordance with s 41 of the Local Court Act 2007 (NSW), that the amount of damages awarded in the second proceedings be varied from $20,597.93 to $20,000. Otherwise the appeal is dismissed. I affirmed the order for costs made by her Honour Magistrate Swain (“the Magistrate”) on 4 August 2020 and reserved the question of costs in relation to the appeal.
On 2 July 2021, orders were made that Ms Yalda provide short written submissions on costs by 12 July 2021 and that Ms Mshref do the same by 19 July 2021. On 15 July 2021 by consent, the parties requested an extension for the submissions to be filed. I have now received those submissions.

Ms Yalda’s submissions

Ms Yalda submitted that it appears from Order 1 made in these proceedings that she had been partly successful in her appeal, specifically, she had succeeded on Ground 3.
Ms Yalda submitted that the consequence is that an order for costs should be made in her favour.
She referred to Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266 (“Cellarit”). In Cellarit, McColl JA stated at [7]-[14]:

“7 Section 98 of the Civil Procedure Act 2005 (NSW) confers a wide discretion on the court with respect to costs. The “general rule” is that court costs follow the event unless the court makes “some other order” pursuant to the discretion conferred by Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.1.
8 As Beazley JA explained in Baker v Towle, in most litigation, UCPR r 42.1 “operates in a straightforward way, ‘the event’ being readily identifiable…

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 Yalda v Mshref (No 2)

Details

AGLC: Yalda v Mshref (No 2) [2021] NSWSC 951
Case: [2021] NSWSC 951
Decision Date: 02 August 2021

CaseChat Overview and Summary

The parties in Yalda v Mshref (No 2) were Yalda, the applicant, and Mshref, the respondent. The dispute involved a property transaction in which the applicant alleged that the respondent breached their contractual obligations. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the applicant was entitled to an award of costs in the circumstances of the case. The court was also required to determine whether the matter had any points of principle that would warrant a departure from the usual practice of awarding costs on the standard basis.

The court considered the nature of the dispute and the conduct of both parties throughout the litigation process. It examined whether there were any exceptional circumstances that would justify awarding costs on an indemnity basis or a different basis altogether. After carefully analysing the facts and the conduct of the parties, the court concluded that there were no points of principle that warranted a departure from the standard basis of costs. The court found that the applicant's claims were not frivolous or vexatious, and the respondent's defence was not without merit. The court also noted that both parties had acted reasonably and proportionately during the litigation process. Therefore, the court decided that the applicant was entitled to an award of costs on the standard basis.

The court's decision was based on a thorough analysis of the legal principles and the specific circumstances of the case. The court found that there were no exceptional circumstances that would justify a departure from the usual practice of awarding costs on the standard basis. The court also considered the conduct of both parties during the litigation process and concluded that both parties had acted reasonably and proportionately. The court ordered that the applicant was entitled to an award of costs on the standard basis, without any points of principle that would warrant a different approach.

Orders