MindChamps Preschool Limited v M & W Zaki Pty Limited ATF the Zaki Group Trust & Ors (No. 2) [2022] NSWSC 1331

Supreme Court New South Wales

Medium Neutral Citation: MindChamps Preschool Limited v M & W Zaki Pty Limited ATF the Zaki Group Trust & Ors (No. 2) [2022] NSWSC 1331 Hearing dates: 27 September 2022 Date of orders: 30 September 2022 Decision date: 30 September 2022 Jurisdiction: Equity Before: Slattery J Decision: The first, second and third defendants are ordered to pay 60% of the plaintiff's costs of the proceedings, including the costs of the motions for special costs orders. No costs order made between the plaintiff and the fourth and fifth defendants. Judgment for interest entered in the sum of $143,500.28. Catchwords: COSTS – offer of compromise and Calderbank offer – motions for special costs orders – apportionment of costs – plaintiff sues five defendants in contract and for misleading and deceptive conduct – plaintiff succeeds in contract against the first, second and third defendants – plaintiff fails against all defendants in the misleading and deceptive conduct claim – claims against fourth and fifth defendants dismissed – plaintiff makes offer of compromise and then a Calderbank offer to all defendants to resolve proceedings – offers were open to acceptance only by all defendants – offers not accepted – whether the judgment the plaintiff obtained against the first, second and third defendants was no less favourable than the offers not accepted by them – consequences of the plaintiff's failure on the misleading and deceptive conduct claim – whether the misleading and deceptive conduct claim was clearly dominant or severable from the contract claim – whether the final costs order should differentiate between the outcomes of the contract claim and the misleading and deceptive conduct claim. Legislation Cited: Civil Procedure Act 2005, s 100 Uniform Civil Procedure Rules 2005, Part 20, Division 4 Cases Cited: Choo v Zhang (No. 2) NSWCA 301 MindChamps Preschool Limited v M & W Zaki Pty Limited ATF the Zaki Group Trust & Ors [2022] NSWSC 881 Wardle v Agriculture and Rural Finance Pty Limited [2012] NSWCA 388 Waters v PC Henderson Australia Pty Ltd [1994] NSWCA 338 Category: Consequential orders Parties: Plaintiff: MindChamps Preschool (Worldwide) Pty Ltd First Defendant: M & W Zaki Pty Ltd ATF the Zaki Group Trust ABN 99233987815 Second Defendant: Child Care Income Protection Pty Ltd ATF The KZ Trust ABN 94358741310 Third Defendant: Mark Zaki Fourth Defendant: Maged Zaki Fifth Defendant: Kerelos Zaki Representation: Counsel: Plaintiff: M. Izzo SC; B. Hancock First to Fifth Defendants: R. Newlinds SC; A. Horvath