Mahmoud El Ali v JGYM Pty Ltd (No 2) [2019] NSWSC 681

Supreme Court New South Wales

Medium Neutral Citation: Mahmoud El Ali v JGYM Pty Ltd (No 2) [2019] NSWSC 681 Hearing dates: 26 April 2019 Date of orders: 07 June 2019 Decision date: 07 June 2019 Jurisdiction: Equity Before: Henry J Decision: (1) Subject to order 7, there be judgment by admissions for the third cross-claimant against the cross-defendant for $65,000.00 plus interest at 10% p.a. up to the end of 23 October 2015 of $3,250 and interest at 15% p.a. on $68,250.00 from 24 October 2015 to 26 April 2019 in the amount of $35,901.37, a total of $104,151.37. (2) The amended cross-claim otherwise be dismissed. (3) The first and second cross-claimants pay the cross-defendant's costs of the cross-claim and amended cross-claim. (4) The cross-defendant's notice of motion for security for costs be dismissed with no order as to costs. (5) The enforcement of the judgment in Order 1 be stayed pending the assessment of the costs orders made against the second, third and fifth defendants on 6 September 2018, the costs orders made against the first and second cross-claimants on 17 September 2018, the costs order made on 28 November 2018 and the costs order made in order 3 of these orders or until further order of the court. (6) The stay in order 5 is conditional upon the plaintiff/cross-defendant: (a) serving on the cross-claimants by their solicitors an application for assessment of the costs referred to in order 5 above by 5 July 2019; (b) filing with the Manager Costs Assessment his application for assessment of the orders referred to in order 5 by 9 August 2019; and (c) proceeding with all due expedition in the costs assessment. (7) The amount determined in favour of the cross-defendant in the costs assessment referred to in order 5 is to be set-off against the judgment amount in order 1 of these orders. (8) The parties have liberty to apply. Catchwords: CIVIL PROCEDURE — Cross-claims — Right of set-off — Costs — No issue of principle Legislation Cited: Civil Procedure Act 2005 (NSW) 2005 ss 21, 56, 57, 58, 59, 60, 98 Uniform Civil Procedure Rules 2005 (NSW) r 42.1 Cases Cited: Australian Beverages Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd (2006) 230 ALR 184; [2006] NSWSC 560 Barescape Pty Limited as trustee for the V's Family Trust & Anor v Bacchus Holdings Pty Limited as trustee for The Bacchus Holdings Trust & Anor (No 10) [2012] NSWSC 1275 Corbett v Nguyen (No 2) [2012] NSWSC 673 Mahmoud El Ali v JGYM Pty Ltd [2018] NSWSC 1298 Padkohe Pty Ltd v Fletcher [2006] NSWSC 1239 Ventura v Higgins [2018] NSWSC 909 Category: Procedural and other rulings Parties: Mahmoud El Ali – plaintiff /cross-defendant JGYM Pty Ltd (deregistered) – first defendant Ozem Kassem as joint and several liquidator of 39 Edward Street Sylvania Pty Ltd (in liq) – second defendant/first cross-claimant Jason Tang as joint and several liquidator of 39 Edward Street Sylvania Pty Ltd (in liq) – third defendant/second cross-claimant 39 Edward Street Sylvania Pty Ltd (in liq) – fifth defendant/third cross-claimant Representation: Counsel: M Elliott SC – plaintiff/cross-defendant R Marshall SC – second, third and fifth defendants/first, second and third cross-claimants