Supreme Court New South Wales Medium Neutral Citation: Awad v Awad (No 3) [2021] NSWSC 1525 Hearing dates: 25 March 2021 Date of orders: 26 November 2021 Decision date: 26 November 2021 Jurisdiction: Common Law Before: Walton J Decision: The cross-defendant shall bring in short minutes of order reflecting this decision within 14 days of this judgment. Catchwords: COSTS – indemnity costs – legally aided party – costs awarded Legislation Cited: Civil Procedure Act 2005 (NSW) Legal Aid Commission Act 1979 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Awad v Awad [2019] NSWSC 385 Awad v Awad (No2) [2020] NSWSC 25 Calderbank v Calderbank [1975] 3 All ER 333 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 Hamod v State of NSW (2002) 188 ALR 659; [2002] FCA 424 Ly v Dong [2018] NSWSC 122 Moseley v AB (No 2) [2017] NSWSC 1812 Nair-Smith v Perisher Blue Pty Ltd (No 3) [2013] NSWSC 1736 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103 Category: Costs Parties: Michael Awad (First Cross-Claimant) Arze Awad (Second Cross-Claimant) Nouhad Awad by her tutor Zouha Habib (Cross-Defendant) Representation: Counsel: P R Glissan (First and Second Cross-Claimants) G Schipp (Cross-Defendant) Solicitors: Ivy Law Group (First and Second Cross-Claimants) Prominent Lawyers (Cross-Defendant) File Number(s): 2016/278389 Publication restriction: Nil Judgment 1. HIS HONOUR: By a cross-claim filed 24 May 2017 ("the cross-claim"), the cross-claimant, Michael Awad ("Michael") sought, inter alia, a declaration that he had a beneficial one-half interest in the property at Bexley in the State of New South Wales ("the property") owned by his mother, the first cross-defendant, Nouhad Awad ("Nouhad"). 2. At the outset, it should be noted that the parties and witnesses will be referred to by their first names, as was done during the course of the proceedings before the Court, noting that nearly all of the relevant persons have the same surname. The Court adopts that approach with no disrespect intended to the relevant persons. 3. Michael's primary cause of action, as pleaded in the cross-claim, was based upon equitable estoppel and, in particular, proprietary estoppel. In summary, Michael's case was that in 1994 his parents, Tony Awad ("Tony") and Nouhad, were registered proprietors of the property as joint tenants. At that time, Nouhad had a debt of $28,000 owed for legal costs arising from an unsuccessful workers compensation application by her. A solicitor's bill was received from GH Healey & Co Solicitors about September 1994 in which a demand was made for payment within 28 days. That, it was submitted, constituted an "emergency" because Tony and Nouhad were not working; they were pensioners. It was alleged that Tony, in Nouhad's presence and with her express approval, orally represented to Michael that, if he paid the legal costs and also paid costs of renovating the property, Tony and Nouhad would give Michael a beneficial one-half interest in the property and allow him to reside there during their lifetimes. 4. It was contended, as a basis for the primary cause of action, that Michael was induced by and relied upon that representation or promise. Michael relied upon two formulations of the promise as expressed in Michael's evidence, both constituting one promise. The first formulation of the promise is to be found in his affidavit filed 28 December 2016 (at para 29) and was in the following terms: My father said: "If you can help us by paying this debt and renovate the home we will give you half of the home and you can stay here until we die". (It may be noted that immediately following the passage Michael stated Nouhad said, "Please help us Michael"). 1. Counsel for Michael also relied upon the evidence of, as he put it, a "slightly more detailed formulation" of the promise which Michael included in his affidavit sworn 28 March 2017 (at para 8). It should be noted that Michael also swore an affidavit on 13 April 2017 in which the promise was expressed in identical terms (at para 10) to the March 2017 affidavit. Paragraph 8 of the March 2017 affidavit was as follows: Shortly afterwards Mum and Dad had a conversation with me at the property in words to the effect: [Tony]: "Michael, if you pay Mum's legal costs to G. H. Healey & Co and pay the costs of renovating the house ("the renovation costs"), Mum and I will give you half the house, and you can live here with us until we both die." [Nouhad]: "Yes, Michael, can you please help us, otherwise my Solicitors could make me bankrupt, and then we'll lose the house". 1. The promise was said by counsel for Michael to be constituted by the statement made by Michael's father. In written submissions, counsel referred to the statement of "the same clear and unequivocal promise or assurance". 2. Despite the differences as to the terms of the promise as expressed in the December 2016 affidavit and the March 2017 affidavit (or the April 2017 affidavit) above, Michael's counsel contended that his case was there was only one representation made on a single occasion. Counsel for Michael also contended that the promise was made by Tony around September 1994 in the presence of Nouhad and with her express approval. Thus, the promise was, it was submitted, as much Nouhad's as it was Tony's, and Nouhad was personally – not vicariously – liable. The claim against her is not a derivative from Tony. 3. Tony died in 2004 and his interest in the property passed to Nouhad. Since 2004, Nouhad had been suffering from dementia and had headaches and forgetfulness. Since at least 2009, she had been suffering from Alzheimer-type dementia. Michael's sister and Nouhad's daughter, Zouha Habib ("Zouha"), was Nouhad's tutor and has been Nouhad's enduring guardian and attorney since 23 February 2013. 4. Michael sought the following relief in the cross-claim: 1. A declaration that the Cross-claimant is the owner of a beneficial one-half interest in [the property]. 2. A declaration that the First cross-defendant holds the Property on constructive trust beneficially for herself and the Cross-claimant in equal one-half shares as tenants in common. 3. Alternatively to paragraphs 1 and 2 above, an order that an enquiry be held as to the amounts of all payments made by the Cross-claimant since 1994 on behalf of the First cross-defendant and her deceased husband Tony Awad (the Cross-claimant's father), including payments of the First cross-defendant's legal costs, costs of renovating the Property, and principal and interest under loans secured by mortgage on the Property. 4. Alternatively to paragraphs 1 and 2 above, a declaration that the First cross-defendant holds the Property on constructive trust for herself and the Cross-claimant beneficially in such proportions as may be found by the Court. 5. An order that the Real Property Act 1900 Register be rectified to reflect the First cross-defendant's and the Cross-claimant's respective beneficial ownership in the Property as found by the Court. 6. A declaration that the Cross-claimant and the Second cross-defendant are entitled to reside at the Property for the remainder of the First cross-defendant's life. 7. An order that the First cross-defendant do all necessary acts and execute all necessary documents to permit the Cross-claimant and the Second cross-defendant to reside again at the Property for the remainder of the First cross-defendant 's life. 8. Such further or other order as the Court thinks fit. 9. Alternatively, equitable damages. 10. Interest. 11. Costs. 1. The relief claimed in the sixth and seventh prayers for relief, namely, relief enabling Michael and his wife, Arze Awad ("Arze"), the second cross-defendant, to reside at the property, was no longer pursued. (It should also be noted "Arze" was also spelt "Arzi" in some documents in the proceedings. The Court will adopt the spelling used in her affidavit.) 2. The matter initially proceeded to hearing with respect to the primary claim as reflected in prayers for relief 1, 2 and 5 ("the primary claim"). Claims for relief 3, 4 and 9 were advanced as alternative claims ("the alternative claims"). By a judgment delivered on 8 April 2019, the Court rejected the primary claim: Awad v Awad [2019] NSWSC 385 ("Awad No 1"). 3. By the Court's judgment in Awad v Awad (No2) [2020] NSWSC 25 ("Awad No 2") the alternative claim with respect to pars 3, 4 and 9 of the relief claimed was dismissed. That determination was reached as a result of the Court finding adversely to Michael with respect to certain threshold issues. The conclusion was also reached because the further proceedings as to the alternative claims after the Court's judgment in Awad No 1 was predicated upon concessions made by counsel on the final day of hearing of the proceedings leading to that judgment which were departed from by counsel in the further pursuit of the alternative claim. 4. At the conclusion of the Court's judgment in Awad No 2, the Court determined that Nouhad should have costs of the disposition of the threshold issues and, subject to hearing from the parties as to the final disposition of the proceedings, costs of the alternative claim. The Court had earlier found in Awad No 1 that the costs of the hearing of the primary relief should be made in favour of Nouhad. The Court made provision in directions for the resolution of any dispute as to any costs. 5. After a relatively lengthy process from the delivery of the judgment in Awad No 2 on 30 January 2020, Nouhad sought the Court to exercise its discretion in favour of her by making an order that Michael pay the cost of the proceedings on an ordinary basis up to 26 April 2018 and then on an indemnity basis from 27 April 2018 (corresponding with the service of a Calderbank offer on 12 April 2018: "the Calderbank letter" or "Calderbank offer"). 6. Michael sought his costs thrown away from 30 January 2020 of the hearing of the costs application on 25 March 2021? from Nouhad as agreed or assessed. 7. Neither party disputed that the Court would make an order for costs on an ordinary basis in the proceedings to 30 January 2020. 8. This judgment concerns the Court's determination of those applications for costs. Submissions of the parties Nouhad's Submissions 1. In summary, Michael's submissions were as follows: 1. A Calderbank offer was served on Michael on 12 April 2018. Michael was given until 26 April 2018 to respond. The first date of hearing for the primary relief was 14 May 208. 2. Whilst the Calderbank letter is not a compromise for the purposes of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 42.14, the same types of considerations arise: Calderbank v Calderbank [1975] 3 All ER 333 and Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103 at 108. 3. Nouhad made an offer by the Calderbank letter which was detailed and provided Michael with more than one month prior to the hearing. The ultimate decision of the Court was substantially the same as the offer which Nouhad put to Michael. The Court has a discretion to allow indemnity costs so long as Michael's case was properly articulated with satisfactory particulars and supporting documents at the time the Calderbank offer was made. In this case at the time the Calderbank offer was served the other party had all of the evidence and particulars and had the background including participation at a mediation. Michael had all of the information necessary to make an informed decision whether to accept or reject the offer: Nair-Smith v Perisher Blue Pty Ltd (No 3) [2013] NSWSC 1736 ("Nair-Smith"). 4. In the proceedings concerning the primary relief, the Court found that a finding of fabrication with respect to Michael's evidence was at least potentially available on the evidence. Ultimately, the Court decided that there had been a significant reconstruction on the part of Michael. 5. On the final day of the hearing, Michael's counsel sought to defer the alternative claim for supplementary submissions without the requirement for further evidence. He ultimately sought to lead evidence in support of that claim. That application failed. 6. Particularly having regard to the Court's reliance on ss 56-60 of the Civil Procedure Act 2005 (NSW), the ordinary rule that costs follow the event should be departed from for the period sought and an award for indemnity costs made. 7. Michael relied upon the fact that Nouhad had received Legal Aid. There was no dispute that she had received that assistance. However, this is not an impediment to the Court exercising its discretion to make an order for indemnity costs in favour of Nouhad. 8. By s 42 of the Legal Aid Commission Act 1979 (NSW), a court may order the payment of costs in proceedings where a legally assisted person is a party to the proceedings and to make an order for costs in respect of the legally aided person as if she was not a legally assisted person. 9. There is no reason why a legally aided person should be in any different position to any other litigant. In any event, Legal Aid will reimburse solicitors for work done at the rate of 175% of the normal hourly rate if costs are recovered. Therefore, there is no barrier to the award of indemnity costs in favour of a legally aided person. Michael's Submissions 1. In summary, Michael's submissions were as follows: 1. The Calderbank offer relied on by Nouhad in support of her application for indemnity costs from 27 April 2018 was not an offer of compromise under the UCPR. 2. Accordingly, reliance on UCPR r 42.14 is erroneous. 3. The UCPR is not relevant and there is no statutory test to be applied in this matter. 4. It follows that the determination of the application for indemnity costs will involve the exercise of a discretion of the Court. There is no automatic consequence flowing from the Calderbank letter. 5. In Nair-Smith, Beech-Jones J refused to exercise a discretion to order indemnity costs in reliance on a Calderbank offer made at a time when the plaintiff had not articulated a claim for economic loss, had not properly particularised her claim and had not provided adequate medical evidence does not establish a legal principle on which Nouhad can rely here to obtain an order for indemnity costs from 27 April 2018 or from any later date. 6. The issues involved in the proceedings were equitable issues involving a claim for equitable relief, primarily estoppel, but, in the alternative, constructive trust. Michael was unsuccessful in both respects. 7. The cross-claimant's primary claim for equitable relief based on equitable estoppel principles was refused after a hearing due to an adverse finding made concerning his credibility concerning the oral representations that he alleged had been made to him by his father in the presence of his mother on which his primary claim was based. But for such adverse finding, it is confidently submitted that his primary claim should and would have succeeded. 8. Thus, Michael's case failed on his own evidence. The Court's determination did not depend, as counsel for Michael submitted, upon "the evidence of family members because they weren't witnesses to the conversation between my client and his parents and the father had died and the mother couldn't given evidence due to advanced dementia". Further, the Court did not determine the matter based on the affidavits proffered by Nouhad in support of the Calderbank offer. 9. The fact that the Cross-Defendant was legally aided at all relevant times is very relevant to whether an order for indemnity costs should be made in her favour at all. 10. In the case of a legally aided person it is virtually impossible to distinguish between ordinary costs and indemnity costs because that person's legal representatives' professional costs are fixed at discounted rates determined by Legal Aid NSW and are paid by it to them directly. 11. A party/party order can do no more than fully indemnify a successful party against his or her costs and disbursements. 12. Such an order would result in Legal Aid NSW recouping whatever professional fees it has paid to a legally aided party's legal representatives plus the recovery of any disbursements. 13. Where a costs order is made, Legal Aid NSW may provide for an increase of legal practitioner fees to 175% of its scale hourly rates, but only where those costs are recovered. 14. There has been no recovery here, and there is unlikely to be any recovery here, due to Michael's impecuniosity. 15. Counsel for Michael was unaware of any decided authority in which an indemnity costs had been made in favour of a legally aided person. 16. The Court should take judicial notice of the fact that Legal Aid pays scale rates to legal representatives of a legally aided person. There is not one rate for indemnity costs and another for party/party costs. There is a fixed scale of costs which is discounted. 17. As to the increase in legal practitioners' rates where there is costs recovery, the provision of the Legal Aid website merely provides for an increase in the scale rates of 175% if there is actual recovery of costs. 18. Michael should have his costs for the period from 30 January 2020 because of costs thrown away due to the repeated delay on the part of Nouhad's solicitors in providing short minutes of order and progressing the issue as to costs. CONSIDERATION 1. The general rule as to costs is set out in s 98 of the Civil Procedure Act 2005 (NSW) and Pt 42 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), namely, that costs follow the event. 2. As to the principles applicable in that respect I refer to my judgment in Moseley v AB (No 2) [2017] NSWSC 1812 at [64]-[79]. Indemnity Costs 1. The power to award indemnity costs is found in s 98(1)(c) of the Civil Procedure Act and r 42.5 of the UCPR. Section 98(1) is extracted below: 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. 1. Rule 42.5 of the UCPR is as follows: 42.5 Indemnity costs If the court determines that costs are to be paid on an indemnity basis: (a) in the case of costs payable out of property held or controlled by a person who is a party to the proceedings: (i) in the capacity of trustee, executor, administrator or legal representative of a deceased estate, or (ii) in any other fiduciary capacity, all costs (other than those that have been incurred in breach of the person's duty in that capacity) are to be allowed, and (b) in any other case, all costs (other than those that appear to have been unreasonably incurred or appear to be of an unreasonable amount) are to be allowed. 1. The overriding purpose of the Civil Procedure Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1). A party to civil proceedings is under a duty to assist the Court to further the overriding purpose and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court: s 56(3) 2. One of the leading authorities on indemnity costs remains Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801. In that case, Sheppard J noted some of the circumstances which have been thought to warrant the exercise of the discretion to order indemnity costs (at 233-234): 1. The problem arises in adversary litigation, ie litigation as between parties at arm's length. Different considerations apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg a government agency or statutory authority. 2. The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this Court the provisions of O 62, rr 12 and 19, and the Second Schedule to the Rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity. 3. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v British Transport Commission (supra) and Handley JA in Cachia v Hanes (supra) on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to. 4. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v Barnes (supra) at 141 said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require". Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston (supra) at 637; namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at p 8) in Tetijo , "The categories in which the discretion may be exercised are not closed". Davies J expressed (at p 6) similar views in Ragata (supra). 5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo ); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata ) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp (supra)); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Keng (unreported, Court of Appeal, NSW, Kirby P, Priestley JA, Cripps JA, No 40744/1992, 27 September 1993) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records (supra)). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. 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 party and party basis. 6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice. 1. A summary of the relevant authority was set out by Slattery J in Ly v Dong [2018] NSWSC 122. His Honour observed (at [45]-[46]): 45. Authority establishes that the question to be asked is whether the circumstances justify an order for indemnity costs in the particular case: Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225. The categories of case in which indemnity costs will be awarded are not closed: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233-234 per Sheppard J. 46. There must be some special or unusual feature or circumstance in the case justifying an award of indemnity costs: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 ("Harrison") at [139]. Such a special or unusual circumstance must involve some relevant delinquency relating to the conduct of the proceedings themselves by the party as litigant: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 ("Oshlack"). Relevant delinquency does not mean moral delinquency but delinquency bearing a relevant relation to the conduct of the case. Although the categories of cases in which indemnity costs may be awarded is not closed, the nature of the cases which awards are made covers a wide variety of circumstances: pursuing hopeless cases, engaging in an abuse of process, unreasonable conduct in the proceedings, especially conduct prolonging the proceedings or maintaining a knowingly false case, or deliberate high handed aggressive or unco-operative behaviour, leading to delay or incurring needless cost, pursuing unfounded allegations of fraud and rejecting Calderbank letters and offers of compromise. The case law is well established and need not be covered in any further detail in these reasons. 1. In Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, at [44], the Court noted: It may be true in a general sense that costs orders are not made to punish an unsuccessful party. However, in the particular circumstance of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs but for costs on a "solicitor and client" basis or on an indemnity basis. The result is more fully or adequately to compensate the successful party to the disadvantage of what otherwise would have been the position of the unsuccessful party in the absence of such delinquency on its part. (footnotes omitted) 1. An award of indemnity costs should be compensatory and not punitive: Hamod v State of NSW (2002) 188 ALR 659; [2002] FCA 424. 2. The general rule that costs follow the event may be displaced, in the exercise of the Court's discretion, so as to make a special order for costs where the successful party has made an offer in a Calderbank letter. Unlike an offer of compromise, a Calderbank letter is merely a relevant consideration in the exercise of the discretion and does not have the equivalent presumptive effect to an offer of compromise under the rules (see UCPR r 42.14). A failure to accept a Calderbank offer which is not bettered by the unsuccessful party and the rejection of the offer was unreasonable may have consequences then in the exercise of the Court's discretion to make a special order for costs. 3. By the offer made in the Calderbank letter, Nouhad made an offer in full and final satisfaction of all claims brought by Michael on the following terms: 1. The proceedings be dismissed forthwith, with the cross-claimant to pay the first cross-defendant's costs as agreed or assessed on an ordinary basis as at the date of the letter. 2. The parties would provide mutual releases for all claims including any and all present or future, actual or contingent actions, causes of action, suits, proceedings, complaints, dispute resolution procedures (whether in a court, tribunal, industry body, ombudsman scheme or other forum dealing with complaints or disputes), pleadings, defences, expenses, costs (including legal costs on a full indemnity basis), losses, obligations or liabilities whatsoever arising out of or in relation to the subject matter of the proceedings. 3. The caveat dated 23 December 2016 in relation to registered dealing number 3/203238 be removed. 4. The parties enter into a deed of settlement giving effect to the above together with terms of confidentiality. 1. Michael, as the unsuccessful party, did not better that offer as his primary and alternative cases were dismissed and he was, subject to any special order made by the Court, subject to rulings of the Court that he would pay the costs of the hearing as to the primary and alternative claims (see Awad No 1 at [396] and Awad No 2 at [124]). 2. In substance, Michael's submitted that the refusal of the Calderbank offer was not unreasonable because the determination of the primary claim only turned upon adverse findings made concerning Michael's credibility and that, but for those adverse findings, the primary claim would have succeeded. By that submission it was presumably contended that Michael could not anticipate his evidence would be rejected in that way. It was also submitted that the evidence of, for example, Michael's brothers did not enter that deliberation and their evidence could not have deterred Michael's pursuit of the claim because they did not witness the promise underpinning Michael's claim. 3. Further, it was contended that the alternative claim for equitable relief was purely dismissed on procedural grounds and was not heard on the merits. 4. A closer examination of Awad No 1 and Awad No 2 demonstrates the difficulties with those propositions. 5. It is true that the Court's conclusion in Awad No 1 turned substantially upon a finding that Michael's credibility as a witness was so undermined by cross-examination that a conclusion must be made that he was a wholly unreliable witness (at [367]). 6. However, the Court concluded that a finding was potentially available, in the light of its considerations, that Michael's evidence as to the promise and his reliance upon it was a fabrication (reference was made at [366] of the judgment additionally to an answer provided by Michael during the course of possession proceedings before M Adams J). In any event, the Court found that Michael's account was a significant reconstruction. Those findings related not only to the promise said to be given by Tony and Nouhad to Michael but to Michael's evidence that, at a later time to the giving of the promise, Tony indicated that he had given Michael half of the house in the presence of Michael and all of his siblings. 7. Michael swore five affidavits in the proceedings (see Awad No 1 at [86]). Affidavits in reply were filed by Jim, Michael's younger brother; Paul, Michael's older brother; Joseph (Michael's eldest brother) and Zouha, Michael's older sister. 8. Jim had, by his affidavit, given evidence inconsistent with the promise as asserted by Michael. Even on Michael's case, which was highly inconsistent on this point, Jim was present at some point during the making of the promise, notwithstanding that Jim's cross-examination with respect to the promise related to Tony's later purported disclosure of the promise to the family. 9. An illustration of this difficulty is set out at part of [212] of Awad No 1 as follows: Generally speaking, inconsistencies between Michael's affidavits may be explicable on a number of bases but there exists significant inconsistencies both between the affidavits and his evidence in cross-examination and internally in his viva voce evidence. Some significant examples may be provided out of those illustrated above: Michael's evidence was inconsistent as to whether there was a single promise, whether the promise was contained entirely in the April 2017 affidavit, where the conversation containing the promise occurred or who was present. In cross-examination, Michael gave evidence for the first time about there being two conversations where the promise was made: one on the veranda, without Jim being present, and another in the kitchen, where Jim was present. Michael gave evidence that the veranda conversation was "small" and came after the "main" conversation in the kitchen, which was inconsistent with his earlier evidence in cross-examination that the conversation outlined in his April 2017 affidavit was the entirety of what he relied on as the promise. Michael's initial position was that the April 2017 affidavit referred to the conversation on the veranda without Jim present but his later position was that the April 2017 affidavit was referring to kitchen conversation. When cross-examined about why he did not refer to Jim as being present at this conversation, Michael referred to the fact that Jim was not present at the conversation on the veranda after he had just stated to the Court that the conversation referred to in the April 2017 affidavit was referring to the kitchen conversation. Then, when questioned on this inconsistency, Michael said that he had not referred to Jim being present in the April 2017 affidavit because he did not think it was relevant, then, when questioned on that, he said he made a mistake. It may also be noted, in this respect, that despite statements that his memory of the promise was excellent, Michael was unable to recount details as to the circumstances of the promise such as month, day or time of day. I accept the submission of counsel for the first cross-defendant that deviations from Michael's account are not consistent with a genuine memory of the promise deposed to in the April 2017 affidavit. 1. Ultimately Jim was found to be a witness of credit. 2. The Court's finding in relation to Jim's account and the promise was as follows (at [374]): Michael's assertion was that the promise occurred over 20 years ago. His father is now deceased and his mother incapacitated. On Michael's evidence the only persons alive or able to give evidence of the promise are himself and Jim. His evidence required close scrutiny. For the reasons earlier given I do not consider Michael to be a reliable witness. Jim, who I have found to be a witness of credit, does not corroborate Michael's account. He gave no evidence confirming the existence of the promise but rather gave evidence that a loan needed to be taken out in order to pay Michael's debt, the solicitor's bill, some renovations and weddings and not by reason of the promise. It may be noted, in that respect, that both he and Michael were searching for wives in Lebanon at or about that time. Arze was not present at any relevant time concerning the promise and her evidence otherwise does not, in my view, corroborate Michael's account because little weight should be attached to it. 1. Furthermore, in the affidavit evidence of the siblings there was a denial of a statement being made by Tony to his family regarding the effect of the promise as asserted by Michael. The Court accepted their evidence in that respect and accepted Michael's brothers as witnesses of credit. 2. Similar problems for Michael's contention exist with respect to the alternative claim. 3. Counsel for Michael submitted that the alternative claim was dismissed in Awad No 2 upon procedural grounds and not the merits of the case. However, this submission overlooks three important considerations. Firstly, the threshold issues determined in Awad No 2 were largely required to be dealt with because of the course taken by counsel for Michael with regard to the alternative claims (see the extract from Awad No 2 below). Secondly, as will be seen again from the extract from Awad No 2 below, the threshold issues went to fundamental aspects of the alternative case sought to be advanced by Michael. They were not merely technical or procedural issues. Thirdly, the Court observed in Awad No 2 that, whilst the Court had not resolved the merits of the alternative claim per se, the threshold issues had been determined adversely to Michael (at [119]). 4. The paragraphs of the judgment in Awad No 2 to which I refer in this respect are at [14]-[21] in the following terms: 14. Claims for relief 3, 4 and 9 were advanced as alternative claims ("the alternative claims"). Michael made opening and closing submissions during the hearing, albeit briefly, in that respect. 15. In opening submissions made on 14 May 2018 ("the opening submissions"), counsel for Michael submitted: There are alternative claims but I won't take your Honour to those alternative claims, at this stage, in the confident hope and expectation if I can put it that high, that the primary claims for relief will succeed. However, if it becomes necessary, there are alternative claims for an inquiry into amounts paid and an alternative declaration as to constructive trust; or alternatively to that equitable damages. But we won't need to deal with those, I would think, until the end of the case. I would think that the matter should, in my submission, should proceed essentially as on the basis of the claims for principal relief. 16. As to closing submissions, the following exchange with counsel for Michael and Nouhad regarding the prayers for relief 3 and 4 ("the closing oral submissions") occurred: HIS HONOUR: Really the inquiry I am making at this stage is how it would be proposed that that would be done. Let us assume because it is the only circumstance in which this arises, so I will postulate it in this way. Let us assume you lose the parts of the claim you are presently pressing, because the other way, as you say, would probably make the alternative relief unnecessary if you win. GLISSAN: Yes, that's right. HIS HONOUR: Then how do you say the matter would go forward in those circumstances? GLISSAN: We would go forward on submissions. I don't think there would be need to be any further hearing. I think the evidence is complete as far as it can go. But there would have to be submissions directed to the question of payments. There would have to be some projections as to how much was paid for interest and that sort of thing. There would have to be some attention given to the question of the value of the property at the time, even though there is no valuation evidence. It is impossible really to obtain valuation evidence, in my submission, 20 years down the track. There would have to be some way of trying to assess what about by way of restitution, in effect, should be awarded to the cross claimant and how it should be secured, if at all, if secured at all, but how should it be secured. A usual way is equitable lien. HIS HONOUR: Yes, but I am not really probing so much the subject matter of the case as to whether it is viable, that is, whether the procedure that you have proposed is viable. It would be viable, I suppose, if there were no evidence required for the prosecution of those held over matters. GLISSAN: There is no further evidence that I can envisage. I can't envisage any further evidence because there is no bank records that can be produced. The subpoena to Arab Bank has been answered with no documents and that is an exhibit in the case. My client doesn't have any documents. Nobody else has produced any documents, and that is not surprising, given the passage of time. There is some evidence in the case about interest rate and term of loan HIS HONOUR: I'm sorry to interrupt you again. GLISSAN: That is all right. HIS HONOUR: But this is just a procedural issue and it seems to me that if you elect to call no further evidence in relation to those matters held over, then, subject to anything your opponent says, I can see that to be an approach that is viable. If you say, "Look, we keep in reserve the prospect of doing so", then there has to be a real question about the approach. GLISSAN: I will need to formally get instructions but – HIS HONOUR: Of course, the evidence is closed. GLISSAN: That's right. As counsel, my view is there can't be any more evidence. I can't think of any evidence that could be called. But I will formally get instructions. HIS HONOUR: We can come back to that. GLISSAN: We will come back to it but my view is there is no further evidence. … [WILLIAMS] Yes, your Honour. There's no evidence as to the value of the property. In relation to the alternative relief sought by my friend, I dispute this matter going on any further. … GLISSAN: First of all, there will be no further evidence in answer to your Honour's question earlier. In reply – HIS HONOUR: Does it follow however, that it would be appropriate to enable the case to be split in the manner that you have proposed? GLISSAN: If it's just a matter of submissions, that shouldn't be a difficulty for the court or my learned friend, in my submission. You have as a document before you by way of submission HIS HONOUR: How do I resolve that if your opponent is saying that it's unclear at the moment whether evidence would or would not be required? GLISSAN: Because I'm saying we're not putting on any more evidence. That's why. HIS HONOUR: That doesn't stop them meeting the case on that basis, on the basis of evidence. GLISSAN: I don't know whether my friend is saying she wants to put on evidence or not. If she wanted to put on evidence, she should have put it on. We are not putting on any more evidence. 17. Following the closing oral submissions, the parties filed, by leave of the Court, supplementary written submissions: Michael filed supplementary written submissions dated 21 June 2018 ("the supplementary written submissions"). The submissions of Michael, in that respect, were summarised in Awad No 1 and extracted at [24(1)] below in the extract of relevant elements of Awad No 1 in the next heading of this judgment. 18. In accordance with the directions of the Court in Awad No 1 (as later amended by the Court), Michael filed further written submissions dated 6 May 2019 ("the further supplementary submissions for Michael"). Counsel for Nouhad filed submissions pursuant to those directions on 3 June 2019 ("the further supplementary submissions for Nouhad"). 19. In the further supplementary submissions for Michael, leave was sought to adduce expert evidence, inconsistently with the contention by counsel for Michael in the closing oral submissions. 20. In the result, the Court listed the matter for directions on 30 July 2019 during which submissions were made by the parties as to the further programing of the matter (see the heading "The Directions Hearing" below). As will be discussed below, the parties agreed that the Court should, without further oral hearing, determine certain preliminary questions raised by counsel for Nouhad (which were described as threshold issues at the directions hearing), provided counsel for Michael could file submissions in reply. That leave was given to Michael and the submissions in reply were filed on 8 August 2019 ("the reply submissions for Michael"). 21. The preliminary issues were described as "threshold issues" because they concerned issues ventilated by counsel for Nouhad, which were broadly of that nature, namely, whether the alternative claims based upon a common intention constructive trust or joint endeavour constructive trust fell outside the pleadings, the nature of the alternative claim for relief, whether there was an absence of evidence to support the basis for the alternative claim (and whether the bases relied upon to establish the trusts were contrary to findings made by the Court in Awad No 1) and whether the Court should refuse leave for Michael to adduce the expert evidence said to bear upon the alternative claim (they shall hereinafter be referred to as the "threshold issues"). Broadly speaking, those contentions advanced by Nouhad with respect to the threshold issues were threefold, were as follows: 1. The claim by Michael upon the basis of a common intention constructive trust or alternatively a joint endeavour between Michael, his father and Nouhad fell outside Michael's pleaded case. Nouhad had not been put on notice as to the nature of the case which it had to defend. 2. There was no evidence before the Court that would sustain a finding of a common intention constructive trust. Further, the findings of the Court in Awad No 1 were inconsistent with any such finding. Similarly, the joint endeavour constructive trust, as framed, must fail because it cannot be established by Michael due to deficiencies in the evidence supporting such a claim and contrary findings, as to relevant elements, made by the Court in Awad No 1. 3. As the claim for relief based on a constructive trust is "hopeless", there can be no proper basis to present evidence to be adduced in support of the claim plus there are further reasons bearing upon the Court's discretion to refuse such a course (later discussed in this judgment). (The transcript of the proceedings attributed this statement to Mr Glissan when plainly it is a submission made on behalf of Nouhad.) 1. Ultimately, the Calderbank offer in this case was made in close proximity to the commencement of the hearing of the proceedings where most of the evidence had been filed (other than the affidavits attached to the Calderbank letter) and Michael had been put on notice of the remainder. Michael had a clear view of the case to be brought by Nouhad (and was further ordered in this respect by a mediation). Michael had all of the information needed to make an informed decision, based on advice, as to his claim. In fact, he had, in substance, the case for Nouhad. A Calderbank offer was made, in clear terms, and Michael had ample time to consider it. The bases upon which it was said that a refusal of a Calderbank letter were reasonable have, for the reasons I have given, not been sustained. It follows that a foundation for the award of indemnity costs has been established by Nouhad but there remains two further factors to consider: the issues raised with respect to the proceedings being legally aided; and the claim for costs advanced by Michael for the period following the delivery of Awad No 2 until the hearing of the costs issue the subject of this judgment. 2. As to the question of Nouhad receiving legal aid, it is plain that an award of costs may be made, at least on an ordinary basis, having regard to her success in the proceedings. No authority has been provided by counsel that an award of indemnity costs may not be made in these circumstances. As a matter of principle, no basis was demonstrated as to why such an award may not be made. No such limitation is apparent from s 42 of The Legal Aid Commission Act. 3. A foundation for the proposition sought to be advanced by Michael was sought to be made by reference to matters not in evidence or which were sought to be relied upon on the basis of judicial knowledge or an assumed basis in fact. 4. The difficulty with that approach is that the factual proposition advanced as to the costs processes within Legal Aid required a more precise analysis in order to evaluate whether, as I understand Michael's submissions, an award of indemnity cost in legally aided proceedings may be of no utility. The submissions before the Court, so far as they bear upon the question, would indicate that there is utility in the making of an award of that kind. 5. Finally, Michael contended that there were costs thrown away because of the conduct of the solicitors for Nouhad in the period after the delivery of Awad No 2. Whilst I would not accept that that contention would apply to the whole of the period between then and the hearing of the question of costs, there is some merit to the contention that the approach of the solicitors for Nouhad was productive of some costs to be thrown away after the judgment in Awad No 2. Some adjustment in the approach of the Court as to costs needs to be made in that respect, mindful that the ultimate determination on the question of costs itself primarily favours Nouhad. 6. In my view, the resolution of Michael's application for costs for the defined period should be resolved upon the basis of the concession proposed by Mr Schipp of counsel, namely that Nouhad should receive an award of costs on an ordinary basis from 30 January 2020 up to and including the hearing of the issue as to costs on 25 March 2021. Otherwise the orders proposed by Nouhad for orders for costs will be made. Directions 1. The cross-defendant shall bring in short minutes of order reflecting this decision within 14 days of this judgment. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 November 2021