Karam v Good Luck Holdings Pty Ltd
[2006] QDC 165
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- Unreported Judgment
- Appeal Determined (QCA)
- Karam v Good Luck Holdings Pty Ltd[2006] QDC 165
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Karam v Good Luck Holdings Pty Ltd[2006] QDC 165
Karam v Good Luck Holdings Pty Ltd[2006] QDC 165
[2006] QDC 165
DISTRICT COURT
CIVIL JURISDICTION
JUDGE RACKEMANN
No. D380 of 2006
THAMIR KARAM | Plaintiff |
and | |
GOOD LUCK HOLDINGS PTY LTD ACN 100 061 425) | First Defendant |
DAYAL HASSARAM MANSUKHANI and | Second Defendant |
POOJA DAYAL MANSUKHANI | Third Defendant |
SOUTHPORT
DATE 01/06/2006
ORDER
HIS HONOUR: This action went to trial in Southport last year commencing on the 14th of April 2005. The hearing went for six days with further written submission received thereafter. Judgment in the matter was given on the 9th of September 2005, at which time reasons were published.
At that time the question of costs arose and the plaintiff's counsel indicated there was an application for indemnity costs. That application was made on two bases. The first basis was that the plaintiff had obtained a judgment no less favourable than an offer to settle, which had been made pursuant to the rules.
On that day I indicated that I did not accept that submission, because while the judgment was no less favourable than the offer to settle in terms of the monetary amount, the offer to settle also required a discharge not only in respect of the current claims, but also in respect of future claims. That was not without some significance in circumstances where, in the context of the subject litigation, an attempt had been made to lodge a counterclaim. Subsequent events show that the Mansukhanis are not shy in relation to litigation.
The judgment in this case, of course, could not secure for the plaintiff a discharge in relation to other claims in the future and so I formed the view that I could not be satisfied that the judgment was no less favourable than the offer to settle, given the conditions which were attached to the offer to settle and I remain of that view.
It was then indicated that I would be asked to order costs on an indemnity basis on a discretionary ground. There was not time, on that date, to hear that argument and so I adjourned the hearing of the costs application to the 11th of October at 9 a.m. and made directions about the filing of outlines.
In the meantime, an application was filed, which was on the part of the first and second defendants, or which was expressed to be on the part of the first and second defendants, effectively seeking that I disqualify myself from the hearing of the matter. Further, proceedings were commenced in the Supreme Court by Mr Dayal Mansukhani against me personally and also against a number of other defendants including the Deputy Registrar of this Court, Mr Bruce McLeod, together with a Mr Craig Smiley, Mr John Briton and Mr Paul White.
When the matter came on on the 11th of October there was an attempt to serve me whilst I was in Court. Subsequently, separate proceedings were commenced against me in the District Court in Southport. Again there were a number of defendants, 15 in total, and the defendants included the plaintiff in the current proceedings and his solicitors and barrister. That proceeding alleged that "the entire defendant conspired and cheated and uneducated and destroy Australian reputation".
I understand that there is also other litigation commenced by Mr Mansukhani against others including other judicial officers, but not in relation to matters which are germane to this matter.
On the 11th of October, having regard to the highly unusual circumstances, I adjourned the applications to a date to be fixed. I should add that, in the application for me to disqualify myself, it was said at one point that, "Judge is remote controlled by them" or at least an allegation that Mr Hammadieh said that was so. It was also said that there was a defamation case "planned by Judge Rackemann".
The allegations against me in the proceedings and otherwise are not, in all respects, detailed in a way which makes it clear precisely what it was I was supposed to have done, but nevertheless they were referred to Crown law and the Chief Judge and more recently the acting Chief Judge.
Each of the actions was ultimately either struck out or dismissed and are no longer extant. I am not aware of any reference being made by Mr Mansukhani or the Court or anyone else of any allegation under the Crime and Misconduct Act and when the matter came back before me this week, the person to whom I gave special leave to appear on behalf of Mr and Mrs Mansukhani indicated, that he did not assert, or his clients did not assert, that I should disqualify myself, although as he quite rightly points out, that is a matter that I should consider if there is any concern in that regard.
I am not aware of any more recent allegations having been made against me. There is, of course, no actual bias on my behalf either for or against Mr Mansukhani or any of the other defendants. The question at its highest is whether there may be apprehended bias. Apprehended bias is said to exist when a party or a member of the public might reasonably apprehend that the Judge is bias. Bias exists if the Judge might not bring an impartial and unprejudiced mind to the resolution of the issues. Importantly, the test is objective. The subjective apprehension by a party or individual is irrelevant.
The fact that a party has made some complaint of some kind against a presiding Judge or has gone so far as to institute litigation against the Judge, might, in particular circumstances, move a Judge to disqualify himself on the basis of apprehended bias, but it does not necessarily have that effect.
In Hillston v Bar-Mordecai [2002] NSWSC 975 Bryson J had to consider the question in circumstances which have some similarities to the current case. In determining not to disqualify himself Justice Bryson observed that he was mindful that it was his duty to determine matters which come before him, but also his duty not to withdraw, unless there are reasons which require him to withdraw.
In this respect, he cited the following passage from the judgment of Mason J in re JRL:ex parte CJL (1986) 161 CLR 342 at 352:
"Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking to the disqualification of a Judge, they will have their case tried by someone thought to be more likely to decide the case in their favour".
Justice Bryson went on to say:
"I have no wish or concern about whether I should or should not hear the trial of these proceedings, or any other particular case in the equity division as it comes before me, but as a matter of duty, I may not allow preferences of litigants for or against my hearing the proceedings to have any effect, unless there are reasonable grounds for an apprehension of bias. From what he has told me, Mr Bar-Mordecai has brought many proceedings, against judicial officers and also against lawyers who have participated in proceedings against him.
In the circumstances, the fact that he has made complaints and brought proceedings against me, which sometimes might move judges to disqualify themselves, have no real weight with me, as I am conscious that my interests are not truly touched by his actions. Like other litigants, the defendant is not in a position to control or influence, directly or indirectly, the composition of the Court, by filing claims against particular judges or by any other means, and it is my duty to hear proceedings as they come before me."
In this case there is, at this point, no outstanding litigation as between Mr Mansukhani, or anybody else, and me concerning this matter.
There is also no outstanding investigation or inquiry into any matters of complaint. Further, notwithstanding what might have been said in any proceedings or other documents filed, I am not satisfied that there is anything which can be pointed to, in terms of my conduct, which could objectively raise an apprehension of bias. I am mindful of my duty, as enunciated by Bryson J, and in the circumstances I will not disqualify myself from the hearing of the outstanding applications in this case.
That then leaves me to deal with the two applications; that is, an application on the part of the second and third defendants, pursuant to rule 668 of the UCPRs, for the case to be reopened and the application by the plaintiff for costs of the proceedings. I shall deal with the applications in that order.
By an application which was filed on the 29th of May 2006, the second and third defendants applied to the Court for orders effectively that the judgment and order passed by the Court on the 9th of September, be set aside and that various other orders made by the Court in relation to costs from the date of the filing of the claim, also be set-aside.
Rule 668 of the UCPRs provides relevantly as follows:
"668(1)This rule applies if -
- (a)facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or
- (b)facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person's favour or to a different order".
While subparagraph (1) relates to facts which create an entitlement, that notion has been given an expansive interpretation for the purposes of rule 668 (see Rankin v Agen Biomedical Limited [1999] 2 QdR 435 at 437 and IVI Pty Ltd v Baycrown Pty Ltd [2005] QSC 330).
In Breen v Lambert (unreported Thomas J 16 August 1991), the test was said to be whether the evidence, if given at trial, "would probably have an important influence on the result of the case, although it need not be decisive", however, in the Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 141, a more stringent rule was stated; that is, whether it can be shown that "it is reasonably clear that the fresh evidence would have produced an opposite verdict". (See also IVI Pty Ltd v Baycrown Pty Ltd [2005] QSC 330 at paras 22 and 23).
It has been said that, other than in exceptional circumstances, perjury alone will not ordinarily be a
sufficient ground for setting aside a judgment (see IVI Pty Ltd v Baycrown Pty Ltd (supra) at para 24).
There is an evidential onus on the party seeking to impugn a judgment on the basis of fraud to demonstrate fresh evidence which raises a reasonable probability of the fraud being alleged.
Where the preconditions for the operation of the rule are established, the Court has a discretion. The Courts have drawn a distinction between cases based upon malpractice or fraud and those cases which involved an "ordinary case of fresh evidence".
In cases where the unavailability of evidence results from malpractice or misconduct on the part of a successful party, it is not necessary to show that it is reasonably clear that an opposite result would have been produced. Although, "if it does not appear that there is at least a real possibility that that would have been so", the judgment will generally not be set aside. (See IVI Pty Ltd v. Baycrown Pty Ltd. Supra at para 23).
It will be seen from Rule 668(1) that one must be able to point to facts which have arisen after an order is made or facts which were only discovered after the order was made. In this case, the second and third defendants point to facts which they say have only been discovered after the order was made.
The first fact which is relied upon is the discovery of the fact that the plaintiff, in this case, engaged his solicitor on the 12th of May 2004. This was said to be significant in light of the plaintiff's evidence at trial that he instructed his solicitor in June.
The affidavit relied upon in support of the application exhibits the relevant part of the transcript. An examination of that extract of the transcript will show that when questioned on the topic, the plaintiff said, "I can't really remember - like when exactly, but I don't think it was July, much earlier, probably June." (See T253 line 30).
It will be seen from that extract that the plaintiff was not definite about the precise time upon which he instructed his solicitor. Discovery of the fact that the instructions were given on the 12th of May would not lead any reasonable person to believe, and it certainly does not lead me to believe, that the plaintiff was deliberately giving false evidence on that topic at trial.
The date upon which the plaintiff engaged his solicitor was not of critical importance in the trial, although it was a matter to which some reference was made in the reasons. In paragraph 25 of the reasons it was noted that the landlord's agent purported to terminate the lease for breach by letter dated the 4th of May 2004 with vacant possession being requested on the 6th of May 2004. The reasons record that the letter was sent via the landlord's then solicitors, Ledger Commercial and Property Lawyers. It was further noted that, at that time, that firm did not act for the plaintiff but that the plaintiff subsequently retained them for the purposes of the present proceedings. That paragraph remains accurate, even on the basis that the instructions were given on the 12th of May 2004, rather than in June 2004.
It was said on behalf of the second and third defendants that the relatively short time period between the letter of 4 May and the plaintiff's engagement of their solicitors - or between the time for vacant possession and the plaintiff's engagement of the solicitors, was somehow of importance in establishing the conspiracy theory which I rejected in the course of my reasons. I frankly do not consider that it has much, if any, significance in relation to my overall findings. I certainly do not consider that it is a fact which, if it had been discovered in time, would have entitled the defendants to a decision in their favour or to a different decision, even having regard to the broad way in which entitlement has been interpreted.
That fact certainly would not have changed my decision in the matter. Or even been an important influence on the result of the case.
There was another fact which was sought to be relied upon. It was, initially at least, a little difficult to identify precisely the nature of this fact. However, it emerged that it was being asserted that a transfer document, between Polycane Furniture Pty Ltd and the first defendant, was a document which had been obtained by the solicitors for the plaintiff from a previous solicitor of the defendant. This was said to again, be of relevance to the defendants making out their case of a conspiracy.
There are a number of difficulties with this part of the application. Firstly, the transfer document was exhibited to an affidavit of the solicitor for the plaintiff in support of an application for a Mareva order which was made prior to the conclusion of the trial and so his possession of it does not seem to be a matter which has only been discovered after an order was made.
Secondly, the material presently before the Court, does not establish that the solicitor for the plaintiff obtained the transfer document in the way which is asserted. Further, I permitted the plaintiff's solicitor to be cross-examined on his affidavit material, and he gave evidence that he had obtained the transfer document from the relevant government department.
The other difficulty is that, even if it were assumed that Mr Hammadieh obtained a document from a former solicitor for the defendants, that falls a long way short of establishing a fact which would have led to a conclusion that Dr Karam was involved in a conspiracy of the type asserted by the defendants. Again, it seems impossible to conclude, on the material before me, that such a fact would have had an important influence on the result, far less produce an opposite verdict.
There is nothing else in the application under Rule 668 which, in my mind, establishes the matters required to be established pursuant to sub-section 1 of that rule and accordingly, that application is dismissed.
The final application to consider is the application for costs of the proceedings. This is a case where there has been a number of interlocutory proceedings, which have produced their own cost orders. However, the costs of the proceedings otherwise have yet to be determined.
There is in this case, no reason to deprive the plaintiff of an order for costs of the proceedings generally, given the success of the litigation. It was said, on behalf of the second and third defendants, that no costs order should be made at this stage against them, because the plaintiff does not, at this stage, seek a costs order against the first defendant. The first defendant is a company which has gone into liquidation. The plaintiff, at this stage, seeks costs orders only against the second and third defendants. Whilst I appreciate that no costs order was sought against the first defendant at this stage, that is no reason to defer consideration of cost orders against the second and third defendants. It is not a prerequisite to the second and third defendants liability for costs that an order also is made against the first defendant.
Rule 703 of the UCPRS provides that, unless an order of the Court otherwise provides, the costs are assessed on the standard basis. The Court may however, order costs to be assessed on an indemnity basis (see Rule 704). Apart from cases especially provided for in the rules, costs will only be ordered to be assessed on an indemnity basis in special circumstances which justify it. For an examination of special circumstances, see Re Talk Finance and Insurances Services Pty Ltd [1994] 1 QdR 558, Naomi Marble and Granite Pty Ltd vs FAI General Insurance Company Limited (No 2) [1999] 1 QdR 518 and
Benseman v Noosa Cat Australia Pty Ltd [2001] QDC 77.
In Naomi Marble (Supra) Sheperdson J included, in circumstances justifying costs on an indemnity, basis:
(i)When the Court's process has been used for ulterior purposes;
(ii)Where some unusual or special feature in the case justifies the Court so awarding costs;
(iii)Where the justice of the case requires it.
A useful discussion of the principles is found in Colgate-Palmolive Company and Anor v. Cussons Pty Ltd [1993] 46 FCR 225.
The question in this case is of some significance to the parties, because of the extended duration of the trial relative to the amount in issue. Obviously what may be recovered on an order for costs to be assessed on a standard basis may be significantly different to what might be recovered on an indemnity basis in such circumstances.
As Sheppard J said in the Colgate-Palmolive case, "This difference must seem extraordinary to a successful party to litigation" and there are certainly good reasons for contending that the successful party to litigation should, wherever they are entitled to costs, be entitled to costs on an indemnity basis, but as Sheppard J pointed out in the Colgate-Palmolive company case, that is not the law, and it is not open to an individual Judge to award costs, having regard to his own view as to the adequacy of costs fixed on a standard basis. An award of costs on an indemnity basis may only be made in a special case where the circumstances justify a departure from the ordinary principle.
Justice Sheppard went on to refer to a number of instances in which the discretion in favour of granting indemnity costs might be exercised. They include the making of allegations of fraud, knowing them to be false; the making of irrelevant allegations of fraud; evidence of particular misconduct which causes loss of time to the Court and to the other parties; evidence that proceedings were commenced or continued for an ulterior motive or in wilful disregard of known facts or clearly established law; the making of allegations which ought never to have been made; the undue prolongation of a case by groundless contentions, or an imprudent refusal of an offer to compromise. These are examples. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a standard basis.
As Sheppard J also pointed out, the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs on an indemnity basis does not mean that Judges are necessarily obliged to exercise that discretion. Costs are always at the discretion of the trial Judge.
In contending for costs to be assessed on an indemnity basis, it was said on behalf of the plaintiff that:
(a)The defendants had imprudently refused to accept the plaintiff's offer to settle;
(b)The second and third defendants were found to have made fraudulent misrepresentations;
(c)The Court was satisfied that a sub-lease document relied upon by them was a recent fabrication;
(d)The purchase by the plaintiff was induced by fraud;
(e)The second defendant had instructed one of his employees to talk the business up; and
(f)The defendant sought to have the Court believe "a wild conspiracy theory".
It was said, on behalf of the plaintiff, that the Court should also have regard to the history of the litigation, which is set out in the outline of submissions. The Court was invited to infer that the defendants had been "running a deliberate campaign to force the plaintiff to spend more money on having his case proceed so that he would see the process as hopeless, and give up, and for the purpose of delaying and postponing the conclusion of the litigation."
I should say, in relation to those matters, that I have not placed great weight on the refusal of the offer to settle, for the reasons which I have already indicated, namely the conditions which were attached to it.
I accept that the defendants and, particularly for present purposes, the second and third defendants have been found to have induced the purchase of the business by the plaintiff on the basis of fraudulent misrepresentations and that is a matter of some relevance. However, I do not consider that it would be appropriate to visit a costs order on an indemnity basis upon the defendants simply because they were found to have made fraudulent misrepresentations.
In my reasons for judgment I indicated that, while I did not accept the defendants' evidence or contentions, there were questions which were raised, even on the plaintiff's case. Those questions are recorded at paragraph 37 of the reasons. As I also recorded, there were difficulties with the defendants' conspiracy theory as I noted in paragraph 38. Whilst I ultimately came to a firm conclusion, this was not a case in which the plaintiff's evidence was, in every respect, compelling, for the reasons that I have set out in my reasons for judgment.
I would not be minded, in the circumstances, to order that costs be on an indemnity basis for the proceedings as a whole. In reaching that conclusion I have had regard, not only to the observations which I have already made, but also to the history of the litigation. In that regard, I accept that the conduct of the defendants has been far from exemplary in the pre-trial period. However, in so far as the plaintiff was put to additional costs, particularly in making applications to court and the like, the question of costs has been considered in relation to such applications (save where they were expressly reserved) and costs orders have been made including on an indemnity basis (see eg. the order of the 23rd of February 2005).
I have had regard to the fact that throughout the pre-trial period, in particular, the defendants were representing themselves. Whilst that does not mean that they are free to act in disobedience of the court rules, I think it is appropriate to have regard to that fact in reaching a conclusion about whether, in all the circumstances, it is appropriate to order that costs be assessed on an indemnity basis, of the proceedings as a whole.
A matter which is no doubt of concern to the plaintiff, is the length of time that was spent in the trial of the proceedings and a question, to which I have given consideration, is whether the trial was unduly prolonged in such a way as to make it appropriate to make an indemnity costs order, at least in respect of that part of the trial representing the extent of the elongation.
In that regard there are two things to consider, the first being the way in which the trial was conducted, given the issues that were prosecuted, and second is the decision as to the issues which were raised in the proceedings.
As to the first of those, it is true to say that the trial went for longer than it might have, had the case been run in a more focussed way by the defendants. Cross-examination of witnesses tended to be lengthy, and on a number of occasions, I endeavoured to indicate that I would not allow the matter to simply drag on endlessly.
The case was, in effect, presented on the defendants' behalf by a Ms Meenaxi, M-E-E-N-A-X-I, who was a visiting Indian lawyer, to whom I gave special leave to appear. Ms Meenaxi is not an Australian lawyer and had no right of appearance, but she demonstrated, in the course of the case, that she had experience in legal matters, including litigation and a degree of competence. Indeed, at the conclusion of the case, I specifically complimented her on the very competent way in which she had rendered assistance in the conduct of the defendants' case. My remarks in that regard were sincerely made.
It seems to me that, by making use of Ms Meenaxi's assistance in running their case, the defendants, in effect, ensured that the trial, although going longer than it otherwise have gone for, was considerably truncated in comparison to what might reasonably have been expected, had the second and third defendants represented themselves without assistance and had the issues been the same.
In the circumstances, given the issues that were at hand, I am not prepared to find that the case was presented by the defendants in a way which unduly elongated the case to such an extent that I would be prepared to make an indemnity costs order.
One thing which did elongate the case was the nature of the issues which the defendants decided to run, in particular, the allegation about the conspiracy theory. That led to the cross-examination of witnesses called by the plaintiff, at some length, in order to examine the nature of disputes which existed between the defendants, particularly the second defendant, and those witnesses which, in some respects, were quite discrete from the dispute between the plaintiff and the defendants, but which were said to be of relevance to the broader conspiracy theory.
I should also mention that the raising of a sub-lease, which I am satisfied was of recent fabrication, was a matter of some concern, although in that regard, it must be acknowledged that the time which was taken up in dealing with that sub-lease, represented a minor proportion of the trial.
Returning then to the question of the conspiracy theory and the effect which it had on the length of the trial, I have given a deal of consideration to whether an indemnity costs order should be made for part of the proceedings on the basis that such allegations ought never have been made and/or had the effect of unduly prolonging the case.
One does not, of course, necessarily visit an indemnity costs order on a party simply for raising an allegation which is weak, or which has been simply not accepted. The question is whether the issue was really so groundless as to be one that ought never have been made and as such, unduly prolonged the case.
In this case, I think that the matter is very much on the margins. Whilst, in the course of the case, the defendants were able to point to disputes which they had with various witnesses, to suggest some form of motive, there was really very little of substance to connect that evidence to an ultimate allegation that Dr Karam was involved in a conspiracy. Notwithstanding the weakness of that case, I have, however, on balance, determined to exercise my discretion against awarding costs on an indemnity basis, even to that partial degree. Accordingly, I will make a costs order on a standard basis to cover those costs of the proceedings, other than the costs in respect to which specific orders have been made.
There are, however, some further specific matters on which I consider that the plaintiff is entitled to costs, and costs on an indemnity basis. That relates, in particular, to the application which has been dealt with this morning under rule 668 of the UCPR. In my view, that application had no reasonable basis and in the circumstances, I consider it appropriate that the applicants be visited with an adverse costs order on an indemnity basis.
The making of that application was also a basis, and ultimately the decisive basis, upon which this matter had to be adjourned on the last occasion and I am satisfied that the costs of the adjournment of the costs application ought also be paid by the second and third defendants on an indemnity basis.
I gave some consideration to whether the second and third defendants ought also pay the costs of the adjournment on the 11th of October. In that regard, however, it is perhaps a little difficult to characterise the defendant's conduct as being engaged in simply to avoid or delay the determination of the costs when the proceedings which were subsequently commenced were proceedings not only against me but against others. I have also had regard to the fact that, on that occasion, in the unusual circumstances that prevailed on that day, the adjournment was one which the Court was minded to give of its own motion, even if no adjournment had been asked for. Accordingly, I will not make an order for costs on an indemnity basis in relation to that adjournment.
The final matter concerns the application for costs on an indemnity basis, which the plaintiff has obviously been unsuccessful in respect of. Given that lack of success, there ought be no order as to costs in relation to the indemnity costs application, other than the costs which I have ordered. The defendants were not legally represented and so would have no legal costs as such. In the circumstances, I think there should simply be no order in relation to those costs.
Now, before I pronounce the final orders does that deal with all of the issues?
MR HAMMADIEH: Your Honour, there's still - with regards to the application to have you excused from making a decision on the costs order we had written to the defendants an offer to settle that application and they have rejected‑‑‑‑‑
HIS HONOUR: Offer to settle that application?
MR HAMMADIEH: Yes, the application to have you dismissed from making an order on the - whether costs should be given or not. Your Honour has dismissed our application prior to‑‑‑‑‑
HIS HONOUR: Yes.
MR HAMMADIEH: ‑‑‑‑‑your judgment on that specific application, I have written to the other side advising them that - rather requesting that their consent to having that application dismissed and pay our costs on a standard basis which they had rejected.
HIS HONOUR: Well, one of the difficulties with that application, I suspect, is it's not strictly an inter parties application. It's an application which they couldn't really consent to that in any event because - sorry, it simply wouldn't be a matter simply of consent between the parties because even if, as they have ultimately - they stand up and say, "Well, we're happy for that application to be dismissed." Having raised those matters it's a matter for the Court itself to consider in any event, isn't it?
MR HAMMADIEH: Yes, your Honour, but it was a matter which they have raised by way of application‑‑‑‑‑
HIS HONOUR: Yes.
MR HAMMADIEH: The court summarily dealt with that application so costs would follow‑‑‑‑‑
HIS HONOUR: Yes.
MR HAMMADIEH: ‑‑‑‑‑the application.
HIS HONOUR: Yes.
MR HAMMADIEH: I do have an affidavit of the correspondence.
...
HIS HONOUR: Yes, thank you for that. Mr Hammadieh, Rule 360 is the rule about - about offers of settlement; isn't it? Is that the rule you're relying on?
MR HAMMADIEH: Just let me look it up, your Honour. Yes, your Honour.
HIS HONOUR: Rule 360 you'll see talks about circumstances in which there's an obtaining of a "judgment no less favourable", you see that?
MR HAMMADIEH: Mmm-hmm.
HIS HONOUR: If you've got the Butterworth's service if you flick over a couple of pages to paragraph 360.20 you'll see that it says that the term means a final relief. So, I don't know that this is a procedure which is applicable to interlocutory applications.
MR HAMMADIEH: You're correct in that, your Honour. But, the only submission I'd like to make is that‑‑‑‑‑
HIS HONOUR: It just comes back to the general discretion, then, doesn't it?
MR HAMMADIEH: It does, your Honour. And it was an application that was filed on October 2005. It's an application that we had to prepare for.
HIS HONOUR: Yes.
MR HAMMADIEH: Obviously has dealt with the issue‑‑‑‑‑
HIS HONOUR: Yes.
MR HAMMADIEH: ‑‑‑‑‑of quite importance to us.
HIS HONOUR: Yes.
MR HAMMADIEH: My learned friend does say that it does not cause any ill will but from our point of view it does cause quite a bit of ill will to state that the Judge, your Honour, has been biased and that‑‑‑‑‑
HIS HONOUR: Yes.
MR HAMMADIEH: And that's the reason why you should be dismissed. And so on that basis and the fact that we actually did have to‑‑‑‑‑
HIS HONOUR: Yes.
MR HAMMADIEH: ‑‑‑‑‑prepare for that application we did incur costs.
HIS HONOUR: Yes.
For the reason which I have just discussed with Mr Hammadieh I do not consider that the offer to settle triggers Rule 360, because Rule 360 refers to a judgment and the annotations suggest what would be the conclusion in any event, that it is relating to a final judgment rather than an interlocutory order.
Nevertheless, the application having been made, it is one which the plaintiffs may have incurred costs in respect of and they ought have those costs and given, in my view, that there was no reasonable basis for making the application, I am satisfied that the costs of that application ought be on an indemnity basis.
...
HIS HONOUR: Accordingly, I order that the second and third defendants pay the costs of the plaintiff of and incidental to the application under rule 668 and that those costs be assessed on an indemnity basis. Secondly, I order that the second defendant pay the plaintiff's costs of and incidental to the application for me to be disqualified and that those costs be paid on an indemnity basis. Thirdly, I order that the second and third defendants pay the plaintiff's costs of and incidental to the adjournment on Monday the 29th of May 2006, those costs to be assessed on an indemnity basis.
Save as otherwise ordered, I make no order as to costs in relation to the plaintiff's application for costs on an indemnity basis and I otherwise order the second and third defendants to pay the plaintiff's costs of the proceedings including, reserved costs, on a standard basis.
...