Rahme v Benjamin & Khoury Pty Ltd (No 2) [2019] NSWCA 239

Rahme v Benjamin & Khoury Pty Ltd (No 2) [2019] NSWCA 239

The Court entered judgment for Mrs Rahme against B&K for $302,040.30 because B&K's proposed deductions were rejected: B&K had admitted the relevant payment was made by Mrs Rahme, the caveat removal costs were consequential on B&K's breach of fiduciary duty, and the $100,000 settlement with Mr Soulos could not be characterised as a payment to Mrs Rahme for the same loss. The Calderbank offer did not justify costs beyond the ordinary basis because it was a joint offer that B&K alone could not accept and would have required B&K to give up a judgment against Mr Rahme that it was entitled to retain.

Jurisdiction
Australia
Judgment Date
08 October 2019
Procedural Posture
Costs; Appeal From Supreme Court of New South Wales, Common Law Division / Court of Appeal Orders on the Papers Following Judgment on the Appeal
Outcome
Mrs Rahme's appeal against B&K allowed; Mrs Rahme's appeal against Mr Khoury dismissed; Mr Rahme's appeal dismissed; consequential judgments and costs orders set aside in part; judgment entered for Mrs Rahme against B&K.
Legal Topics
['calderbank Offer' 'ordinary Basis Costs' 'fiduciary Duty' 'caveat Proceedings' 'equitable Charge' 'costs Agreement' 'settlement Credit']
['costs' 'civil Procedure' 'equity'] ['calderbank Offer' 'ordinary Basis Costs' 'fiduciary Duty' 'caveat Proceedings' 'equitable Charge' 'costs Agreement' 'settlement Credit']

Case Brief

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Procedural Posture

Costs; Appeal From Supreme Court of New South Wales, Common Law Division / Court of Appeal Orders on the Papers Following Judgment on the Appeal

Legal Issues

  1. 1 ['Whether the judgment sum in favour of Mrs Rahme against B&K should be reduced by $33,759.18 said to have been expended by Mr Rahme rather than Mrs Rahme.' "Whether Mrs Rahme's costs incurred in proceedings to remove B&K's caveat should be included in the monetary judgment in her favour." 'Whether the monetary judgment in favour of Mrs Rahme should be reduced by $100,000 paid to Mr and Mrs Rahme by Mr Soulos in settlement of their claim against him.' 'Whether the Calderbank offer justified a departure from the usual rule that costs follow the event and are awarded on the ordinary basis.' "What costs orders should be made in relation to the claims against Mr Khoury and Mr Rahme's appeal."]

Ratio Decidendi

The Court entered judgment for Mrs Rahme against B&K for $302,040.30 because B&K's proposed deductions were rejected: B&K had admitted the relevant payment was made by Mrs Rahme, the caveat removal costs were consequential on B&K's breach of fiduciary duty, and the $100,000 settlement with Mr Soulos could not be characterised as a payment to Mrs Rahme for the same loss. The Calderbank offer did not justify costs beyond the ordinary basis because it was a joint offer that B&K alone could not accept and would have required B&K to give up a judgment against Mr Rahme that it was entitled to retain.

Court Disposition

Mrs Rahme's appeal against B&K allowed; Mrs Rahme's appeal against Mr Khoury dismissed; Mr Rahme's appeal dismissed; consequential judgments and costs orders set aside in part; judgment entered for Mrs Rahme against B&K.

Orders

  • ['Allow the appeal in respect of the dismissal of Mrs Rahme\'s claim against Benjamin & Khoury Pty Ltd ("B&K").' "Dismiss the appeal in relation to the rejection of Mrs Rahme's claim against Mr Dieb Khoury." "Dismiss Mr Rahme's appeal." 'Set aside, as between Mrs Rahme and B&K only, the judgment in the Court below...