New South Wales Court of Appeal CITATION: Peter A. Simon Real Estate Pty. Ltd. v. Ghabash & Ors; Chung & Anor. v. Ghabash (No.2) [2005] NSWCA 18 HEARING DATE(S): Matter dealt with on written submissions in Chambers JUDGMENT DATE: 16 February 2005 JUDGMENT OF: Mason P at 1; Hodgson JA at 2; McColl JA at 8 DECISION: The following additional orders made in the PAS appeal: 5. Mr. Ghabash to pay PAS's costs of the proceedings. 6. Mr. Ghabash to repay PAS $164,202.30 plus interest at Supreme Court rates from 16 April 2004. CATCHWORDS: COSTS - Appeal succeeds on ground that plaintiff failed to make out elements of case - Deficiency not articulated by defendant below - Plaintiff ordered to pay costs of trial and appeal. Peter A. Simon Real Estate Pty. Ltd. - appellant PARTIES: Michael Ghabash - 1st respondent Michael Chung and Diana Chung - 2nd & 3rd respondents FILE NUMBER(S): CA 41167/03; 41105/03 COUNSEL: Matter dealt with on written submissions in Chambers Murrary Stewart & Fogarty, Sydney for PAS Real Estate SOLICITORS: McMahons National Lawyers, Sydney for Chungs LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 5356/00 LOWER COURT JUDICIAL OFFICER: Certoma ADCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41167/03 CA 41105/03 DC 5356/00 MASON P HODGSON JA McCOLL JA Wednesday 16 February 2005 PETER A. SIMON REAL ESTATE PTY. LTD V. GHABASH & ORS. CHUNG & ANOR. V. GHABASH Judgment No.2 (On Orders) 1 MASON P: I agree with Hodgson JA. 2 HODGSON JA: The orders made on 17 December 2004 in this matter reserved leave for submissions to be made on costs by PAS, and for submissions by PAS and the Chungs as to orders for the return of money paid. 3 As regards orders for the return of money, there were no submissions from the Chungs. PAS sought an order for the return of $164,202.30 plus interest at Supreme Court rates from 16 April 2004. There was no submission to the contrary from Mr. Ghabash and I propose that such an order be made. 4 As regards costs, PAS submitted that it was for Mr. Ghabash to make out the necessary elements of a cause of action against PAS. Mr. Ghabash submitted that he and the primary judge were entitled to take the view, having regard to the way the trial was conducted, that if the main factual issue was decided against PAS (as it was), PAS was conceding Mr. Ghabash's entitlement to relief. 5 I remain of the view that it was for Mr. Ghabash to make out the elements of a cause of action against PAS. If PAS had clearly articulated this at the trial, it is unlikely that the hearing would have been shorter; but there is some chance that the primary judge would have found in favour of PAS and the need for an appeal would thus have been avoided. 6 I do not think this consideration is enough to alter the usual result as to costs of the trial or the appeal. 7 Accordingly, I propose the following additional orders in the PAS appeal: 5. Mr. Ghabash to pay PAS's costs of the proceedings. 6. Mr. Ghabash to repay PAS $164,202.30 plus interest at Supreme Court rates from 16 April 2004. 8 McCOLL JA: I agree with Hodgson JA. ********** 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.