Yazbeck v Rachid - [2020] NSWSC 743

Supreme Court

New South Wales

Medium Neutral Citation: Yazbeck v Rachid [2020] NSWSC 743
Hearing dates: 15 April 2020
Date of orders: 16 June 2020
Decision date: 16 June 2020
Jurisdiction: Equity
Before: Robb J
Decision:
Order the defendant to pay the plaintiffs’ costs of the proceedings on the ordinary basis.

Catchwords: COSTS — Party/Party — Bases of quantification — Ordinary basis — where the defendant ultimately consented to the orders made by the Court, but resisted the plaintiffs’ claim for relief up until the hearing — where the issue of costs is not to be dealt with as if the parties had settled the proceedings
Legislation Cited: Conveyancing Act 1919 (NSW)
Cases Cited: Denton by her tutor NSW Trustee and Guardian v Denton [2019] NSWSC 660
Hypec Electronics Pty Ltd (in liquidation) v Mead (2004) 61 NSWLR 169; [2004] NSWSC 731
Category: Costs
Parties: Milad Mark Yazbeck (first plaintiff)
Patrick Yazbeck (second plaintiff)
Patrick Zoghbi (third plaintiff)
Zena Rachid (defendant)
Representation:
Counsel: S Stanton (plaintiffs)
Z Rachid (self) (defendant)
Solicitors: Yazbeck Law (plaintiffs)

File Number(s): 2020 / 44476

Judgment

The plaintiffs apply to the Court for an order that the defendant pay their costs of these proceedings on the indemnity basis. As I understand the submissions made on behalf of the defendant by her solicitor, she does not oppose a costs order being made, but submits that the order should be made on the ordinary basis.
The plaintiffs commenced these proceedings by summons filed on 11 February 2020.
The plaintiffs sought orders for the appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) of certain property at Brighton-le-sands. The evidence suggests that the property was owned by the three plaintiffs and the defendants as tenants-in-common. Each of the three plaintiffs was registered as having a 1/100 share in the property and the defendant had a 97/100 share. However, the first plaintiff deposed to the fact that he and the defendant each had a one half beneficial interest in the property under a partnership between the parties.
It was said in the affidavit in support of the summons that the somewhat unusual nature of the beneficial ownership and the registered proprietorship of the property was explained by a number of complicated circumstances related to the parties also having interests as tenants-in-common in other properties.
Apparently, the need for the sale of the property arose because partnership projects for the development of various properties had not proceeded as expected, and a mortgage debt had accumulated on the property which was in arrears and could only be met from the proceeds of sale of the property.
The first plaintiff gave evidence that, in about November 2019, he and the defendant agreed that the property needed to be sold, but that, after a purchaser had been found, the defendant refused to sign the contract. The plaintiffs put in evidence a contract of sale for the property signed by purchasers with the sale price of $1,800,000. That was…

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: [2020] NSWSC 743
Decision Date: 16 June 2020

CaseChat Overview and Summary

In the case of Yazbeck v Rachid, the parties involved were Yazbeck, the plaintiff, and Rachid, the defendant. The dispute pertained to issues surrounding costs in a legal proceeding. The case was heard in the Federal Circuit Court of Australia. The plaintiff sought to recover costs incurred during the litigation, arguing that the defendant had unnecessarily prolonged the proceedings by resisting the plaintiff's claims until the hearing, despite ultimately consenting to the orders made by the Court.

The primary legal issue before the Court was whether the defendant's resistance to the plaintiff's claims up until the hearing justified a departure from the ordinary basis of quantification of costs. The Court needed to determine if the circumstances warranted awarding costs on a basis other than the usual party/party arrangement. The Court had to consider whether the defendant's conduct warranted a departure from the norm and if the costs incurred were reasonable and necessary given the context.

The Court ruled that the issue of costs should not be treated as if the parties had settled the proceedings, despite the defendant's eventual consent to the orders. The Court found that the defendant's resistance to the plaintiff's claims until the hearing was unjustified and unreasonable. Consequently, the Court awarded costs to the plaintiff on the ordinary basis of quantification, reflecting the defendant's unnecessary prolongation of the litigation. The Court's decision underscored the importance of parties engaging in litigation in a manner that is reasonable and proportionate to the issues at hand.

The Court ordered the defendant to pay the plaintiff's costs of the proceedings, in accordance with the ordinary basis of quantification. This decision highlighted that even if a defendant consents to the substantive orders sought by the plaintiff, their conduct during the litigation can still impact the award of costs.

Orders