The Lebanese Moslem Association v Dandan [2022] NSWSC 1769

Supreme Court New South Wales

Medium Neutral Citation: The Lebanese Moslem Association v Dandan [2022] NSWSC 1769 Hearing dates: On the papers; submissions ending 16 December 2022 Date of orders: 23 December 2022 Decision date: 23 December 2022 Jurisdiction: Equity Before: Parker J Decision: See [45] Catchwords: COSTS – interlocutory costs order – costs thrown away by amendment – application for payment on account – claim under competition covenant no longer pursued – whether discrete issue – whether it was unreasonable to pursue the claim Legislation Cited: Civil Procedure Act 2005, s 56 Legal Profession Uniform Law, ss 181, 204 Cases Cited: Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1 Moustapha v Nelson (No 3) [2020] NSWSC 1263 Royal Australian Naval Reserve Rifle Club Inc v New South Wales Rifle Association Inc [2010] NSWSC 351 Wang v Cai (No 2) [2021] NSWSC 1268 Category: Costs Parties: Sahar Dandan (Applicant/First Defendant) The Lebanese Moslem Association (Respondent/Plaintiff) Representation: Counsel: M Gibian SC/A Guy (Applicant/First Defendant) J Steele SC (Respondent/Plaintiff)

Solicitors: Concordia Legal (Applicant/First Defendant) Kennedys Law (Respondent/Plaintiff) File Number(s): 2022/84934 Publication restriction: Nil

Judgment 1. In this matter, I made an interlocutory costs order in favour of the first defendant in October 2022. The first defendant has now applied for an order for payment of a lump sum of approximately $210,000 on account of the plaintiff's liability for costs under that order. 2. The order which is sought requires some explanation. It is not uncommon for the Court to be asked to make an order that the amount due under an interlocutory costs order be assessed, and paid, forthwith. But a separate assessment may be a distracting and expensive exercise. If the beneficiary of the order ultimately succeeds in the proceedings, and receives the benefit of an order for the costs of the proceedings generally, there may be no need for a separate assessment at all. 3. These considerations have led me, in a number of cases where the circumstances would justify the making of an order that interlocutory costs be assessed and paid forthwith, instead to make an order for payment of a lump sum on account of those costs. Such an order does not involve any final determination of the parties' rights and obligations under the order. If, on assessment, the assessed costs exceed the lump sum, the beneficiary of the order will be entitled to the difference. If the assessed costs are less than the lump sum, then the beneficiary will need to repay, or otherwise credit, the difference. See for example: Moustapha v Nelson (No 3) [2020] NSWSC 1263 at [97].