Supreme Court New South Wales Medium Neutral Citation: Bangladesh Islamic Centre of NSW Inc v El Zamtar [2022] NSWSC 690 Hearing dates: 23 May 2022 Date of orders: 27 May 2022 Decision date: 27 May 2022 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The proceedings are dismissed as an abuse of process. (2) The plaintiff is to pay the defendant's costs forthwith in the sum of $15,000. (3) The plaintiff may not commence further proceedings against Mr El Zamtar on the same, or substantially the same cause of action, or for the same, or substantially the same relief, until these costs are paid. Catchwords: CIVIL PROCEDURE – abuse of process – permanent stay sought because of abuse of process – dismissal for abuse of process – dismissal on terms – stay of proceedings until costs paid COSTS – gross sum costs order – costs payable forthwith Legislation Cited: Civil Procedure Act 2005 (NSW) Limitation Act 1969 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bangladesh Islamic Centre of New South Wales Inc v Elzamtar [2021] NSWCA 198 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 Beach Petroleum NL and Clarmont Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 Collinson v Paxus Australia Pty Ltd (No 2) [2021] NSWSC 1032 Elzamtar v Bangladesh Islamic Centre of New South Wales Inc [2020] NSWSC 1161 Elzamtar v Bangladesh Islamic Centre of New South Wales Inc (No. 2) [2020] NSWSC 1634 Fiduciary Ltd v Morning Star Research Pty Ltd (2002) 55 NSWLR 1; [2007] NSWSC 432 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Hamod v NSW [2007] NSWSC 707 Harrison v Schipp (2002) 54 NSWLR 738 Harvey v Barton (No 4) [2015] NSWSC 809 Idoport v National Australia Bank [2007] NSWSC 23 Jago v District Court of NSW (1989) 168 CLR 23 Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 Keen v Telstra Corporation Ltd (No 2) [2006] FCA 930 Kiwi Munchies Pty Ltd v Stern [2006] NSWSC 433 Leary v Leary [1986] 136 NLJRep 942 Leary v Leary [1987] All ER 261 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 O'Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698 Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 Perpetual Trustees Co. Ltd v McAndrew [2008] NSWSC 790 Rogers v R (1994) 181 CLR 2 Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 UBS AG v Tyne (2018) 360 ALR 184 Wentworth v Wentworth [1996] NSWCA 552 Category: Procedural rulings Parties: Bangladesh Islamic Centre of NSW Inc (Plaintiff) Mohamad El Zamtar (Defendant) Representation: Counsel: C Liedermann (Plaintiff) A Ahmad (Defendant) Solicitors: Macquarie Law Group (Plaintiff) Hanna Legal (Defendant) File Number(s): 2021/00291308 Publication restriction: Nil Judgment 1. The defendant, Mr El Zamtar, pursuant to an amended notice of motion filed on 17 March 2022, seeks a permanent stay of proceedings, or alternatively, dismissal of these proceedings under the Uniform Civil Procedure Rules 2005 (NSW) r 13.4 as an abuse of process. 2. A stay of proceedings until a costs order in associated proceedings in the District Court are paid is sought as a backup order. Mr El Zamtar also seeks a gross sum costs order in the sum of $15,000. 3. For the reasons that follow, I have dismissed the proceedings and ordered that the plaintiff pay the defendant's costs of this motion and the proceedings on a gross sum basis, payable forthwith, and that it not recommence until the costs are paid. Background 1. Some background is necessary to provide context to the proceedings commenced by Bangladesh Islamic Centre of New South Wales Inc (BIC) in the Common Law Division of this Court on 13 October 2021. 2. On 21 August 2020, Mr El Zamtar commenced proceedings in the District Court seeking damages from BIC. He stated that BIC engaged him by verbal agreement to provide caretaker services at the Sefton Mosque in 2003. He alleged that position was confirmed by various letters and conversations and that on various occasions this position was affirmed in writing and his role of caretaker renewed by the Executive Committee of BIC. 3. Mr El Zamtar alleged that he had various duties and responsibilities, including maintenance of the building and grounds, including lawn-mowing. He stated that the arrangement was that he would pay day-to-day expenses on behalf of BIC for maintenance, including rates and utilities and various bills, and BIC was to reimburse him. 4. Mr El Zamtar said that in breach of that agreement, BIC failed to reimburse him in respect of a long list of items that were included in a schedule to his District Court statement of claim. He also claimed for the costs and expenditure, including the value of his own labour, to construct a pergola in 2014 pursuant to a verbal agreement with the BIC, but the BIC did not pay as agreed nor reimburse him for his expenditure associated with the construction. 5. In the alternative to his contract claim, Mr El Zamtar pleaded quantum meruit for the work done at his expense and the value of his labour. 6. In its defence filed on 28 September 2020, BIC admitted that Mr El Zamtar provided the services set out, but asserted that Mr El Zamtar provided those services "voluntarily free of charge for heavenly reward". 7. BIC specifically denied any agreement entitling Mr El Zamtar to be paid for his services and denied that any of the letters referred to by Mr El Zamtar evidenced any arrangement for payment. 8. BIC alleged that Mr El Zamtar first, was to keep complete records of any money he paid for expenses and to pay such expenses out of donation money that he collected at the Mosque, and second, that he in fact did use donation money collected to pay some bills. 9. BIC asserted that the allegations about the building of the pergola were the subject of proceedings in the Equity Division of the Supreme Court and were determined by Parker J on 31 August 2020 (Elzamtar v Bangladesh Islamic Centre of New South Wales Inc [2020] NSWSC 1161) and by virtue of that fact, Mr El Zamtar is "thereby stopped" (sic) (presumably a reference to "estopped")" from pursuing any of the claims regarding the "Pergola Agreement". 10. BIC also pleaded a limitation defence in respect of any amounts claimed which accrued prior to 21 August 2014. BIC ended its Defence with the following: "31. Furthermore the defendant says the plaintiff has been collecting donations at the Mosque by way of force and without authority of the defendant; 32. The defendant withdrew consent and any authority for the plaintiff to collect donation money at the Sefton Mosque from 4 April 2019 by way of letter/in a conversation on that day." 1. BIC filed a cross-claim against Mr El Zamtar seeking judgment in the sum of $1,737,270 on the basis that Mr El Zamtar must account to it, and repay all donation money received by him from members of the Sefton Mosque. It also asserted that the statement of claim should be dismissed. 2. The bases pleaded for the orders sought in the cross-claim were that at different times, certain (generally described) donations were collected for particular purposes and over particular periods of time by Mr El Zamtar but he never kept accounts of the donations collected and never provided information regarding those collections to the Executive Council of BIC, and the BIC now want that money repaid to it. The donations are referred to under the following descriptions: the "Friday donations" comprising donations at the Sefton Mosque every Friday during Friday prayers in May 2008 and between January 2012 and August 2013; the "Kuwait donations" in 2003, the "Emamul Haque Agreement" in 2016 (said to correspond to the period October 2016 to May 2019), and the "Fakhruddin Chowdhury Agreement" said to commence in May 2019 and proceed to 25 September 2020. 3. BIC also pleaded that without its authority, Mr El Zamtar removed or damaged structure and framework of the Mosque premises causing damage to the value of over $230,000 and that between January 2012 and September 2020 Mr El Zamtar independently sought donations from members of the Sefton Mosque community under a particular business name which was not authorised by BIC and that he collected approximately $1500 per week over that period equating to approximately $676,500 and that this comprises unjust enrichment and that money should be repaid to BIC. 4. Mr El Zamtar filed a defence to the cross-claim on 21 December 2020 disputing the allegations, alleging that most if not all of them are statute-barred and denying the BIC is entitled to any damages, interest or costs as claimed or at all. 5. In December 2020 Mr El Zamtar filed an application for security for costs and orders that the proceedings be stayed until security was paid, and that if security was not paid, the proceedings on the cross-claim should be dismissed. 6. Ancillary orders were also sought, but as appears from the transcript of proceedings before Gibb J on 22 April 2021, an accommodation in respect of the issues that arose on the notice of motion was reached which allowed, amongst other things, BIC to have time to reformulate its cross-claim on the basis that it make certain payments - Mr El Zamtar's costs of the successful security for costs application in the sum of $7,500 within 21 days, and a sum of $17,500 security for BIC's costs on the cross-claim to be paid to Mr El Zamtar's solicitors', trust account within 45 days. 7. In respect of the concededly deficient cross-claim Gibb J ordered as follows: "5. On or before 16 June 2021 the cross-claimant is to either a inform the cross-defendant of what if any paragraphs of the cross-claim the cross-claimant is abandoning or file and serve a motion seeking leave to file an amended cross-claim; 6. If the cross claimant files such a motion seeking leave to file an amended cross-claim, that motion is listed for hearing on 23 June 2021." 1. Her Honour listed the matter for directions generally on 23 June 2021. 2. It is common ground that although the $7,500 was paid, the security for costs sum was never paid and no amended cross-claim, or correspondence regarding BIC's intention with regard to the cross-claim, was ever filed or provided. 3. To ensure no ambiguity regarding his position, Mr El Zamtar filed a notice of motion on 17 June 2021 seeking formal dismissal of the cross-claim on the basis of non-compliance with Gibb J's orders. 4. On 23 June 2021 Russell J dismissed the cross-claim and ordered BIC pay Mr El Zamtar's costs of the cross-claim and the notice of motion filed on 17 June 2021. He also made some orders regarding management of service of evidence in the remaining part of the proceedings. 5. Counsel who appeared for BIC in this Court on 23 May 2022 in response to Mr El Zamtar's notice of motion informed the Court that he settled this statement of claim. He was also counsel briefed in the District Court proceedings. He appeared both on the argument before Gibb J in April 2021 where he sought extra time to remedy the problems in the cross-clam, including addressing those parts that were on their face, statue-barred and at the directions hearing in June 2021 before Russell J where the cross-claim was dismissed. 6. There is absolutely no suggestion that anything was raised before Russell J or in correspondence between the parties since, that there was somehow an accidental failure to comply with Gibb J's orders in respect of the cross-claim. 7. Instead, failing to pay the costs due for security as ordered by Gibb J, and/or remedying its cross-claim as counsel had told the Court it would, on 13 October 2021, BIC commenced proceedings in this Court, pleading almost identically the facts, matters and circumstances that had been pleaded in the dismissed cross-claim in the District Court proceedings. 8. The only differences are minor or of no effect. The repeated assertions of an oral acknowledgement more recently of the old debts is of no relevance or effect given the requirements of s 54 of the Limitation Act 1969 (NSW) that any such acknowledgement must be in writing and signed by the acknowledger. There is a slightly more tidy pleading of the alleged terms of the alleged oral contract regarding each of the categories of donations, but otherwise the allegations are basically the same. 9. There are other relevant background matters relating to the Equity / Court of Appeal proceedings between BIC and Mr El Zamtar. 10. On 3 February 2021 Mr El Zamtar's solicitors wrote to the solicitors for BIC stating that Mr El Zamtar would pursue the judgment debt of $314,055 ordered on 31 August 2020 by Parker J, together with the costs ordered on 17 November 2020. That letter requested notice as to when the debt would be paid. No response was given. 11. On 24 May 2021, Mr El Zamtar's solicitors made a costs offer regarding the Equity proceedings and noted that there was no stay ordered relating to the appeal that had by then been filed. The letter noted that interest on the judgment sum would be sought, as well as interest on any unpaid costs and if necessary, the costs of any costs assessment process required. No reply was made to this letter. 12. On 3 August 2021, BIC's appeal from the judgment of Parker J was heard by the Court of Appeal. 13. On 3 September 2021, BIC's appeal was dismissed: Bangladesh Islamic Centre of New South Wales Inc v Elzamtar [2021] NSWCA 198. Costs of the appeal were ordered against BIC. 14. On 13 October 2021 these proceedings in this Court were filed by BIC. 15. On 22 November 2021 Mr El Zamtar's solicitors wrote to BIC's solicitors pointing out the abuse of process and requested the proceedings be withdrawn. 16. On 25 November 2021 a letter from BIC's solicitors was sent which rejected the issues raised. 17. Mr El Zamtar's recovery of judgment and costs due to him in the Equity / Court of Appeal proceedings had been referred to recovery solicitors, Strafurd York, who informed Mr El Zamtar's solicitors in February 2022, that BIC had filed an application to set aside the Creditor's Statutory Demand on the basis that BIC had initiated Supreme Court proceedings which it apparently claimed "would deem the enforcement an abuse of the process". Mr El Zamtar's Notice of Motion 1. An affidavit of Mr Hanna, solicitor, affirmed 8 March 2022 was read in support of the motion. The affidavit annexed relevant matters of history including the judgments of Parker J in Elzamtar v Bangladesh Islamic Centre of New South Wales Inc [2020] NSWSC 1161 and Elzamtar v Bangladesh Islamic Centre of New South Wales Inc (No. 2) [2020] NSWSC 1634 and the judgment of the Court of Appeal in Bangladesh Islamic Centre of New South Wales Inc v Elzamtar [2021] NSWCA 198, dismissing BIC's appeal from Parker J's decision. I note the effect of these judgments is that certainly since 3 September 2021, if not before, BIC owes a significant sum of money to Mr El Zamtar. 2. BIC relied upon an affidavit of Muhammed Alam sworn 13 April 2022. It consists mainly of vague submissions. Mr Alam stated that the BIC was "unable to pay the security for costs", but does not say why. The failure to file an amended cross-claim is not explained. 3. Mr El Zamtar's primary position is that these proceedings are an abuse of process and should be permanently stayed. Alternatively, there should be dismissal of the proceedings as an abuse of process under UCPR 13.4. Any right to recommence (or return to the District Court to reagitate the dismissed cross-claim) should be subject to a requirement that costs of these wasted, duplicatory proceedings first be paid. Principles and relevant rules 1. There is a statutory power for all courts to order a stay of any proceedings before it, either permanently or until a specified day: s 67 of the Civil Procedure Act 2005 (NSW). This Court has an inherent power to stay proceedings which are an abuse of process: Jago v District Court of NSW (1989) 168 CLR 23. 2. As Gummow ACJ, Hayne, Crennan and Bell JJ explained, "the term 'abuse of the process of the court' may be used in different senses" (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [88]). 3. McHugh J in Rogers v R (1994) 181 CLR 251 at [286] said that although the categories of abuse of process are not closed, cases usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. 1. The term "abuse of process" is not a term of art and does not have any set meaning (Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; 227 ALR 425; 45 MVR 288; [2006] HCA 27 at [1] and [9]; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [78]; Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; 260 ALR 34; [2009] HCA 43 at [28]; O'Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698; 303 ALR 314; [2013] NSWCA 315). In Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275; French J (as his Honour then was) said (at 279) that "[t]he possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed". 2. In UBS AG v Tyne (2018) 360 ALR 184, Kiefel CJ, Bell and Keane JJ said (at [1]) that either of two conditions enliven a court's power to stay proceedings for an abuse of process, namely where the use of the court's procedures occasions unjustifiable oppression to a party or where such use serves to bring the administration of justice into disrepute. 3. Alternative relief by way of dismissal is sought under r 13.4 which provides: 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings— (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). 1. Section 91 of the Civil Procedure Act is also relevant. It provides: 91 Effect of dismissal of proceedings (1) Dismissal of— (a) any proceedings, either generally or in relation to any cause of action, or (b) the whole or any part of a claim for relief in any proceedings, does not, subject to the terms on which any order for dismissal was made, prevent the plaintiff from bringing fresh proceedings or claiming the same relief in fresh proceedings. (2) Despite subsection (1), if, following a determination on the merits in any proceedings, the court dismisses the proceedings, or any claim for relief in the proceedings, the plaintiff is not entitled to claim any relief in respect of the same cause of action in any subsequent proceedings commenced in that or any other court. 1. BIC's position is that s 91 allows it to do what it has done and because it is entitled to recommence, it can choose where and when. 2. Relevantly to the order sought by Mr El Zamtar for conditions to be imposed on any right to bring fresh proceedings is UCPR r 12.10: 12.10 Stay of further proceedings to secure costs of proceedings dismissed If— (a) as a consequence of the dismissal of proceedings, a party is liable to pay the costs of another party in relation to those proceedings, and (b) before payment of the costs, the party commences further proceedings against that other party on the same or substantially the same cause of action, or for the same or substantially the same relief, as that on or for which the former proceedings were commenced, the court may stay the further proceedings until those costs are paid and make such consequential orders as it thinks fit. 1. Overarchingly relevant are the provisions of ss 56 to 60 of the Civil Procedure Act which are reproduced here given their centrality to the Court's powers over its processes, and the need to bear each of those provisions in mind given the issues surrounding BIC's conduct raised by this notice of motion: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) 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. (3A) (Repealed) (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3)— (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. (6) For the purposes of this section, a person has a relevant interest in civil proceedings if the person— (a) provides financial assistance or other assistance to any party to the proceedings, and (b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings. 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects— (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 58 Court to follow dictates of justice (1) In deciding— (a) whether to make any order or direction for the management of proceedings, including— (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court— (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant— (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 59 Elimination of delay In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. 60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. Submissions 1. Mr El Zamtar submitted that having regard to the history of the disputation between these parties, repeated litigation delinquency by BIC and outstanding costs orders, BIC's conduct must attract significant criticism in circumstances where its officers continue to pursue senseless litigation. 2. Put simply, to reinvent the litigation that was dismissed as a consequence of failing to comply with a security for costs order, but by attempting to recommence this litigation without complying with that order, is a gross abuse of process, and justifies a permanent stay. 3. At the very least, the proceedings should be recognised as an abuse of process under r 13.4 and dismissed with costs and a requirement that the costs be paid before BIC attempt to do the same again. 4. The basis for legitimacy of these proceedings was submitted by counsel for BIC to be that as there had been no determination on the merits, and s 91(a) of the Civil Procedure Act allows the step BIC has taken to commence these proceedings in this Court, despite the summary dismissal in the District Court of those same issues. 5. Mr El Zamtar submitted in reply that it is no answer for BIC to attempt to rely on s 91 of the Act in circumstances where the dismissal in the District Court was due to BIC's own failure to pay security and comply with the Court's order to amend. He argued that an analogy can be drawn to the situation in Collinson v Paxus Australia Pty Ltd (No 2) [2021] NSWSC 1032, where Adamson J considered the importance of the terms upon which a previous dismissal order was made in concluding that replica proceedings in that case constituted an abuse of process (I interpolate here that in those proceedings, an undertaking by the party in issue not to recommence proceedings was a decisive factor. No such undertaking was given here, but the point remains that the circumstances of the dismissal are highly relevant). Decision 1. It is impossible to escape the inference that proceedings were filed in this Court, at least in part, to avoid the consequences of BIC's dilatory conduct in the District Court and the requirement that BIC pay security for costs before being allowed to proceed with its cross-claim. 2. It is difficult to escape the inference, given its timing three months after dismissal of the cross-claim in the District Court, but only five weeks after the unfavourable judgment against it in the Court of Appeal, that one purpose of BIC filing the statement of claim in this Court was to attempt to stymie the recovery proceedings by Mr El Zamtar against BIC. 3. Litigation is not a game by which parties hide from their responsibilities, avoid the consequences of orders made against them and instead engage in brinkmanship at the expense of the Court's finite time and resources. 4. To the extent that parties choose to engage in that behaviour, on the advice of their lawyers or based on their own misguided attitudes, they do so at their peril. 5. The District Court had all the necessary jurisdiction to deal with the real issues between these parties. By the real issues I am referring to those aspects of BIC's cross-claim which it chose to plead in the District Court, that are not very obviously statue-barred. To the extent any legitimately arguable claims came close to the jurisdictional limit of that Court, arrangements could have been discussed to accommodate that, but were not. 6. No affidavit explanation was given as to why the cross-claim was left to be dismissed in the District Court. It is disingenuous, having prevailed upon Gibb J in April 2021 for time to get the cross-claim in order and to remove statue-barred claims, to do nothing, but then six months later, to assert those same claims (statute-barred claims included) in separate proceedings in another Court, thus side-stepping the security for costs order made in April 2021. 7. The processes of the Court should not be allowed to be manipulated in this way. 8. Given the course of conduct and the failure to explain it, I am of the view that it is appropriate to dismiss these proceedings on terms. There may be some maintainable aspect to the conduct pleaded on the cross-claim and the statement of claim filed in this Court that has yet to be determined on the merits and for that reason, I am not prepared to grant a permanent stay of the whole of the subject matter of the proceedings. I am however of the view a temporary stay on terms should be given that costs incurred by the defendant should be paid first. Costs 1. Mr El Zamtar seeks an order that his costs of the motion and for the proceedings in this Court be payable forthwith and be assessed on a gross sum basis. 2. The Court has power to make a gross sum costs order under s 98(4) of the Civil Procedure Act. The power is not confined and may be exercised whenever circumstances warrant the exercise of the power: Harrison v Schipp (2002) 54 NSWLR 738 at [21]. Factors which favour a gross sum costs order are where an assessment is likely to be lengthy or complex: Beach Petroleum NL and Claremont Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120, where a party's conduct has unnecessarily contributed to the costs of the proceedings: Leary v Leary [1986] 136 NLJRep 942, and/or where a costs assessment is likely to be unduly protracted: Harvey v Barton (No 4) [2015] NSWSC 809. 3. The second mentioned criteria is satisfied here. BIC's behaviour in commencing these duplicatory proceedings, having failed without explanation to prosecute the (same) allegations in the District Court in an appropriate way, is an abuse of process. 4. That abuse is aggravated by the fact that the statement of claim is replete with claims it knows (and acknowledged through its counsel, Mr Liedermann, to the District Court in April 2021) are not maintainable because they are statute-barred. Unnecessary costs have been incurred. There has already been intransigence demonstrated by BIC in acting the way it has and judging by past conduct and the contentless but combatitive statements in the affidavit of Mr Alum as well as the tone of inter-partes correspondence and BIC's written submissions, there will likely be more. 5. In relation to the discretion to order the costs in a gross sum, as identified by von Doussa J in Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120: "The purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation. The power is appropriate to be used in complex cases. An order that costs be assessed as a gross sum does not envisage that any process similar to that involved in taxation should take place, but the power must be exercised judicially and after giving the parties an adequate opportunity to make submissions on the matter." 1. The Court should only make the gross sum costs order if it considers that it can do so fairly between the parties and that it has sufficient confidence that it is able to arrive at an appropriate sum: see Idoport v National Australia Bank [2007] NSWSC 23 at [9]. The approach to estimation of costs should be logical, fair and reasonable: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123. If the Court is persuaded to make a gross sum costs order then the Court may adopt a broad-brush approach: see Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [22]. 2. In Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [8] (Penson) Campbell AJA accepted that situations where it might, depending on the individual circumstances, be appropriate to make a gross sum costs order would include: 1. Simple cases where there would be utility in "cutting the Gordian knot" of protracted fights about costs: see Keen v Telstra Corporation Ltd (No 2) [2006] FCA 930 at [5]; 2. Where the amount in issue is a modest sum and it would not be appropriate to require a further process of assessment to be undertaken: see Kiwi Munchies Pty Ltd v Stern [2006] NSWSC 433; and 3. Where the costs assessment is likely to be a protracted and expensive exercise and the other party is unlikely to pay: see Leary v Leary [1987] All ER 261 at 266. 1. It seems to me that all three of those circumstances identified by Campbell AJA in Penson, apply here. A gross sum costs order is appropriate, and is likely to avoid further arid argument, expense and delay. I accept the evidence of Mr Hanna in his sensible and measured affidavit as demonstrating a logical, fair and reasonable approach to the assessment of costs. I consider the figure arrived at to be appropriate and the compromise to a figure of $15,000 to be a conservative and very fair sum. 2. Rule 42.7 of the UCPR provides that unless the Court orders otherwise, the costs of any interlocutory application are not payable until the conclusion of the proceedings, however an order permitting the payment of costs forthwith may be appropriate in certain circumstances: 1. where the interlocutory proceedings relate to matters distinct from the substantive issues in the proceedings: Wentworth v Wentworth [1996] NSWCA 552; Hamod v NSW [2007] NSWSC 707; 2. where the costs were incurred by the unreasonable conduct of the party against whom an order has been made: Fiduciary Ltd v Morning Star Research Pty Ltd (2002) 55 NSWLR 1; [2007] NSWSC 432. 3. where the costs are significant and the time for payment may otherwise be long postponed: Fiduciary v Morning Star; 4. where the interlocutory proceedings are an unnecessary and unwarranted application: see Perpetual Trustee Co. Ltd v McAndrew [2008] NSWSC 790. 1. The conduct of BIC in commencing these proceedings was patently unreasonable. The correspondence from Mr El Zamtar's solicitors drawing to BIC's attention the abuse of process and Mr El Zamtar's intention to move the Court for orders for dismissal was timely, appropriate and courteous. The correspondence was rebuffed and the Court's time has been taken up with this dispute. 2. The plaintiff should pay the defendant's costs forthwith and in the gross sum of $15,000 including disbursements. 3. It is also appropriate to make an order under UCPR 12.10 requiring payment of those costs before BIC can commence any further proceedings against Mr El Zamtar on the same or substantially the same cause of action as that claimed in these proceedings. Orders 1. The Court makes the following orders: 1. The proceedings are dismissed as an abuse of process. 2. The plaintiff is to pay the defendant's costs forthwith in the sum of $15,000. 3. The plaintiff may not commence further proceedings against Mr El Zamtar on the same, or substantially the same cause of action, or for the same, or substantially the same relief, until these costs are paid. ********** 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: 01 June 2022