Prodromos Anastasi Foukkare v Angreb Pty Limited & Ors [2006] NSWCA 335

New South Wales Court of Appeal

CITATION: Prodromos Anastasi Foukkare v Angreb Pty Limited & Ors [2006] NSWCA 335

HEARING DATE(S): 27 September 2006

JUDGMENT DATE: 28 November 2006

JUDGMENT OF: Beazley JA at 1; Giles JA at 77; Ipp JA at 78

DECISION: 1. Grant leave to appeal; 2. Appeal allowed; 3. The respondents are to pay the appellant's costs of each of the proceedings No. 5341 of 2003 and No. 5342 of 2003; 4. The respondents are to pay the costs of the summons for leave to appeal and of the appeal but are to have a certificate under the Suitors' Fund Act 1951 (NSW) if entitled.

CATCHWORDS: PRACTICE AND PROCEDURE – respondents were parties to similar proceedings brought against appellant in the Family Court and the Supreme Court – Family Court proceedings resolved in favour of respondents – whether continuation of Supreme Court proceedings constituted an abuse of process by respondents - PRACTICE AND PROCEDURE – discontinued proceedings – appellant rejected offers made by respondents to discontinue proceedings – whether refusal of offers unreasonable – whether offers had effect of discontinuance – whether trial judge erred in awarding costs to respondents - COSTS – order by trial judge that appellant pay respondents' costs – whether trial judge erred in failing to have regard to respondents' ability to discontinue proceedings – application of Rule 42.19 of Uniform Civil Procedure Rules which provides discontinuing party is to pay costs unless some other order made by court

Family Law Act 1975 (Cth) Pt VIII LEGISLATION CITED: Supreme Court Act 1970 (NSW) s 101(2)(c) Uniform Civil Procedure Rules 2005 (NSW) rr 12.1, 12.2, 42.19

Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194 Fordyce v Fordham [2006] NSWCA 274 Idoport v National Australia Bank Limited & Anor [2006] NSWCA 202 Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Qin (1997) 186 CLR 622 Reichel v Magrath (1889) 14 App Cas 665 CASES CITED: Reynolds v Reynolds [1977] 2 NSWLR 295 Rippon v Chilcotin Pty Limited (2001) 53 NSWLR 198 Rogers v The Queen (1994) 181 CLR 251 Sinclair v British Telecommunications plc [2001] 1 WLR 38 State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 (64,077) Walton v Gardiner (1993) 177 CLR 378