Rahme v Benjamin & Khoury Pty Ltd [2023] NSWSC 244

Supreme Court New South Wales

Medium Neutral Citation: Rahme v Benjamin & Khoury Pty Ltd [2023] NSWSC 244 Hearing dates: 19 October 2022 Date of orders: 23 March 2023 Decision date: 23 March 2023 Jurisdiction: Common Law Before: McNaughton J Decision: (1) The appeal is allowed. (2) The orders made by Associate Justice Harrison on 16 March 2022 so far as they concern Dana Rahme are set aside. In lieu, the following orders are made: (a) In relation to costs up to and including 5 August 2021: (i) Subject to (ii), order that Gabriel Rahme pay Benjamin & Khoury Pty Ltd's costs of the application on the ordinary basis up to and including 5 August 2021; (ii) Order that Dana Rahme pay the costs thrown away as a result of the amendment of the original motion which had the effect of removing her as an applicant, as agreed or assessed. (b) Order that Gabriel Rahme pay Benjamin & Khoury Pty Ltd's costs of the application on the ordinary basis after 5 August 2021. (3) Benjamin & Khoury Pty Ltd is to pay Dana Rahme's costs of these proceedings on the ordinary basis. (4) In the event that either party seeks to vary Order 3, I direct: (a) The party seeking a variation to provide any affidavits and submissions (limited to three pages) within 28 days; (b) The other party to provide any affidavits and submissions in reply (limited to three pages) within 14 days of receipt of the material in Order (4)(a); (c) Such an application be determined on the papers. Catchwords: APPEAL – costs – notice of motion seeking orders to set aside a costs order following amendment removing an applicant – 14 grounds of appeal – whether costs incurred as the result of the amendment were more than de minimis – whether costs order sought for an ulterior purpose – whether it was appropriate for costs order to be made in those terms – appeal allowed – costs order set aside – more limited costs order made Legislation Cited: Bankruptcy Act 1966 (Cth) ss 58, 84 Interpretation Act 1987 (NSW) s 36 Uniform Civil Procedure Rules 2005 (NSW) Pt 7, Div 7, rr 1.11, 36.16 Cases Cited: Benjamin & Khoury Pty Ltd v Gabriel Rahme [2021] NSWSC 1302 Benjamin & Khoury Pty Ltd v Gabriel Rahme (No 2) [2022] NSWSC 279 Benjamin & Khoury Pty Ltd v Rahme [2021] NSWSC 1038 Rahme v Benjamin & Khoury Pty Ltd (2019) 100 NSWLR 550; [2019] NSWCA 211 Rahme v Benjamin & Khoury Pty Ltd (No 2) [2019] NSWCA 239 Stojanovski v Stojanovski [2018] FCA 580 Category: Costs Parties: Dana Rahme (Applicant) Benjamin & Khoury Pty Ltd (Respondent) Representation: Counsel: C Bevan (Applicant) D Smith (Respondent)