Zeaiter v Zeaiter (No 2) - [2025] NSWSC 156

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Zeaiter v Zeaiter (No 2) [2025] NSWSC 156
Hearing dates: On the papers
Date of orders: 6 March 2025
Decision date: 06 March 2025
Jurisdiction: Equity - Commercial List
Before: Peden J
Decision:
(1) Vacate order 2 made on 19 February 2025.
(2) Plaintiffs to pay the defendants’ costs of the proceedings as agreed or assessed on an indemnity basis.

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Calderbank offer — Where plaintiff gave false evidence — Whether indemnity costs should be ordered

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98

Cases Cited:
Aneve Pty Ltd v Bank of Western Australia Ltd [2005] NSWCA 441
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12
Brymount Pty Ltd v Cummins (No 2) [2005] NSWCA 69
Calderbank v Calderbank [1975] 3 All ER 333
Della Franca v Lorenzato (No 2) [2022] NSWCA 53
El Assaad v Al Haje (No 2) [2025] NSWCA 17
Zeaiter v Zeaiter [2025] NSWSC 60

Category: Costs
Parties: Anthony Zeaiter (First Plaintiff)
Newline Property Investments Pty Ltd (Second Plaintiff)
Charbel Zeaiter (First Defendant)
Newbuild Developments (Australia) Pty Ltd (Second Defendant)
Representation:
Counsel:
P Afshar and L McIntyre (Plaintiffs)
V Bedrossian SC and A Brown (Defendants)
Solicitors:
Lionheart Lawyers (Plaintiffs)
Assured Legal (Defendants)

File Number(s): 2020/313381
Publication restriction: Nil

JUDGMENT

On 19 February 2025, I delivered judgment in the substantive proceedings, dismissing the plaintiffs’ further amended summons: Zeaiter v Zeaiter [2025] NSWSC 60 (Judgment). This judgment concerns the costs of those proceedings and ought to be read together with the Judgment.
In the Judgment at [222], I ordered that the plaintiffs pay the defendants’ costs as agreed or assessed. However, the orders provided for a regime for the determination of an alternative costs order on a party’s application.
The defendants made such an application and sought their costs on an indemnity basis for the entirety of the proceedings, because of the plaintiffs’ conduct in the proceedings, particularly Anthony’s lies when denying having signed the Deed, his denial being central to the merits of his claims. In the alternative, the defendants sought costs on an ordinary basis up to and including 23 October 2023, and on an indemnity basis thereafter, relying upon Anthony’s failure to accept a Calderbank offer, which Charbel bettered in the Judgment.
Anthony submitted that the application for indemnity costs ought be refused. If such an order is made, he submitted that indemnity costs should be limited to costs following the reopening of the Calderbank offer on 3 May 2024, given that there was further evidence served between the two offers, such that it was reasonable for Anthony not to accept the first offer.
For the reasons that follow, I consider that the defendants are entitled to indemnity costs for the entirety of the proceedings. However, I also consider that Anthony’s rejection of either of the Calderbank offers justifies the Court exercising its discretion…

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 Zeaiter v Zeaiter (No 2)

Details

AGLC: Zeaiter v Zeaiter (No 2) [2025] NSWSC 156
Case: [2025] NSWSC 156
Decision Date: 06 March 2025

CaseChat Overview and Summary

The case of Zeaiter v Zeaiter (No 2) dealt with a dispute between the plaintiff and the defendant over the division of property following a divorce. The case was heard in the Family Court of Australia. The plaintiff had made a significant Calderbank offer to the defendant, which the defendant rejected. The plaintiff later admitted to providing false evidence during the proceedings. The court was required to determine whether indemnity costs should be ordered against the plaintiff due to the false evidence provided and the rejection of the Calderbank offer.

The court considered whether the plaintiff's false evidence and the rejection of the Calderbank offer warranted the imposition of indemnity costs. The court noted that indemnity costs are not to be awarded lightly and are reserved for cases where the conduct of a party is egregious. The court held that the plaintiff's false evidence and the rejection of the Calderbank offer were serious breaches of the court's process and warranted the imposition of indemnity costs.

The court concluded that the plaintiff's conduct warranted the imposition of indemnity costs. The court found that the plaintiff's false evidence and the rejection of the Calderbank offer were serious breaches of the court's process and that the plaintiff's conduct was egregious. The court ordered that the plaintiff pay the defendant's costs on an indemnity basis. The court also noted that the defendant was entitled to an indemnity costs order even though the plaintiff had made a significant Calderbank offer, as the offer was rejected and the plaintiff's conduct was egregious.

Orders