Penhall (as executor of the estate of the late Paul Sukkar) v Abu.Tony Pty Ltd atf Abu.Tony Discretionary Trust (No 2) [2023] NSWSC 1630

Supreme Court New South Wales

Medium Neutral Citation: Penhall (as executor of the estate of the late Paul Sukkar) v Abu.Tony Pty Ltd atf Abu.Tony Discretionary Trust (No 2) [2023] NSWSC 1630 Hearing dates: 6 December 2023 Date of orders: 20 December 2023 Decision date: 20 December 2023 Jurisdiction: Equity Before: Robb J Decision: See [71] Catchwords: COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Application of Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 in a case where a substituted plaintiff is a solicitor appointed as executor of a deceased plaintiff's estate to represent the estate — where solicitor has no interest as a beneficiary in the estate — where solicitor has a right to be paid professional fees for acting as the solicitor in the proceedings — where the Court held that the solicitor was not in substance acting for himself and was entitled to recover his professional fees under a costs order made against the defendants COSTS — Party/Party — Orders against non-parties — where the first defendant was substantially the moving party in the proceedings — where the primary part of the defence was unreasonable and delinquent — where the Court has made an order that the second and third defendants who controlled the first defendant should pay part of the costs ordered to be paid by the first defendant to the plaintiff — consideration of circumstances in which a costs order should be made against third parties COSTS — Party/Party — Bases of quantification — consideration of significance of the failure of parties to accept Calderbank offers Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Cases Cited: AB Developments (Australia) Pty Ltd v El-Sayed (No 2) [2017] NSWSC 1530 Atanaskovic v Birketu Pty Ltd [2023] NSWCA 312 Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Giurina v Greater Geelong City Council [2021] VSCA 318 London Scottish Benefit Society v Chorley (1884) 13 QBD 872 Makaritis v Makaritis (No 3) [2023] NSWSC 409 Penhall (as executor of the estate of the late Paul Sukkar) v Abu.Tony Pty Ltd atf Abu.Tony Discretionary Trust [2023] NSWSC 434 Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2005] NSWSC 481 Stejskal v Hely [2019] NSWSC 1417 United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2020] VSCA 15 Category: Consequential orders Parties: Garry Neville Penhall as executor of the estate of the late Paul Sukkar (Plaintiff) Abu.Tony Pty Ltd atf Abu.Tony Discretionary Trust (First Defendant) Michael Taouk (Second Defendant) Amal Taouk (Third Defendant) Representation: Counsel: TS Hale SC/J O'Sullivan (Plaintiff) A Paterson (Defendants)