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Zarfati v McMillan

Zarfati v McMillan

Case [2023] NSWSC 839 18 July 2023

Costs

Security for Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Zarfati v McMillan [2023] NSWSC 839
Hearing dates: On the papers. Submissions closed 11 July 2023.
Date of orders: 18 July 2023
Decision date: 18 July 2023
Jurisdiction: Common Law
Before: Wright J
Decision:
(1)   Pursuant to the Costs Order made on 21 April 2023, the plaintiff is to pay the defendants’ costs of and incidental to the two notices of motion in the sum of $205,000.00 (inclusive of GST assuming, without deciding, that GST is payable in respect of all relevant services).
(2)   The amount to be provided under the Security for Costs Order made on 21 April 2023 is $155,000.00 (inclusive of GST assuming, without deciding, that GST is payable in respect of all relevant services).
(3)   The manner in which security under the Security for Costs Order is to be given is to be agreed between the parties within 35 days of these orders but, if agreement cannot be reached within that time, the parties have liberty to apply on two days’ notice to have the manner in which such security is to be given determined by the Court.

Catchwords:
PRACTICE AND PROCEDURE – costs – gross sum costs order – security for costs order – no point of principle.

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 60, 98(4)(c)
Legal Profession Uniform Law (NSW), s 172
Legal Profession Uniform Law Application Act 2014 (NSW), ss 63, 76

Cases Cited:
Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
Eliezer v The Council of St Andrew's Cathedral School (No 2) [2021] NSWCA 227
Gabrielle v Abood (No 4) [2023] NSWCA 100
Hamod v State of New South Wales [2011] NSWCA 375
Haselhurst v Toyota Motor Corporation Australia Limited trading as Toyota Australia [2020] NSWSC 1607
Ohn v Walton (1995) 36 NSWLR 77
Re Niruzzi Pty Ltd [2012] NSWSC 773
Seafolly Pty Ltd v Maddern (No 6) [2015] FCA 1369
Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228; 215 ALR 788
Zarfati v McMillan [2021] NSWSC 944
Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99

Texts Cited:
G E Dal Pont, Law of Costs (5th ed, 2021, LexisNexis)

Category: Costs
Parties: Frank Zarfati (Plaintiff)
Robert McMillan (First Defendant)
McMillan Investment Holdings Pty Limited (Second Defendant)
Representation:
Counsel:
G Carolan (Plaintiff)
A Bannon SC with J Svelha (Defendants)
Solicitors:
Pope & Spinks Solicitors (Plaintiff)
Somerset Ryckmans (Defendants)

File Number(s): 2020/00163152

Judgment

Introduction

This matter has had a somewhat chequered procedural history and some of that history is recorded in Zarfati v McMillan [2021] NSWSC 944. It is not necessary to set out in detail the procedural history here. It is sufficient to note that, on 13 April 2023, the Court was hearing the plaintiff’s notice of motion filed on 25 January 2023, seeking an extension of time to file his evidence, and the defendant’s notice of motion filed on 27 January 2023, seeking to have the proceedings dismissed or permanently…

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 Zarfati v McMillan

Details

AGLC: Zarfati v McMillan [2023] NSWSC 839
Case: [2023] NSWSC 839
Decision Date: 18 July 2023

CaseChat Overview and Summary

Zarfati v McMillan is a case involving a dispute between the parties regarding the determination of costs. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Zarfati, sought a gross sum costs order and security for costs against the defendant, McMillan. The court had to decide whether such orders were appropriate in the circumstances of this case.

The legal issues before the court included whether there was a point of principle that would justify the granting of a gross sum costs order and security for costs. The court had to consider the relevant criteria and whether the orders were necessary to ensure the fair administration of justice. The court was also required to determine if the plaintiff's conduct warranted the imposition of a costs penalty.

In delivering the judgment, the court found that there was no point of principle that necessitated the making of a gross sum costs order or security for costs order. The court held that the plaintiff's conduct did not warrant the imposition of a costs penalty. The judge concluded that the case did not present a situation where such orders were appropriate. The court dismissed the plaintiff's application for a gross sum costs order and security for costs.

The final orders of the court were that the plaintiff's application for a gross sum costs order and security for costs be dismissed. The court did not impose any costs penalty on the plaintiff. The decision highlights the importance of demonstrating a point of principle or exceptional circumstances to justify the making of such orders.

Orders