Engadine Medical Imaging Services Pty Ltd as trustee for the Engadine Unit Trust v Mena Ibrahim (No 2) [2025] NSWSC 126

Engadine Medical Imaging Services Pty Ltd as trustee for the Engadine Unit Trust v Mena Ibrahim (No 2) [2025] NSWSC 126

It was appropriate to dispense with the requirement to file a notice of motion for the costs application where sufficient notice was provided to the court and affected parties within time. Plaintiffs should pay defendants' costs on the ordinary basis up to and including 20 November 2023, and on an indemnity basis thereafter, as failure to accept the Calderbank offer made by defendants was unreasonable in all the circumstances. Indemnity costs for the whole proceedings were not justified, as the plaintiffs' conduct was not delinquent or unreasonable prior to that date.

Parties
First Plaintiff/respondent: Engadine Medical Imaging Services Pty Ltd ATF the Engadine Unit Trust; Second Plaintiff/respondent: Ali Kyatt; Third Plaintiff/respondent: Advanced Imaging Pty Ltd ATF the Kyatt Family Trust; First Defendant/applicant: Mena Ibrahim; Second Defendant/applicant: Engadine Medical Imaging Pty Ltd; Third Defendant/applicant: Nabeel Chaudhry; Fourth Defendant/applicant: Warilla Diagnostic Imaging Pty Ltd ATF Warilla Diagnostic Image Trust trading as Focus Radiology; Fifth Defendant/applicant: Focus Radiology Dapto Pty Ltd; Sixth Defendant/applicant: Focus Radiology Warrawong Pty Ltd; Seventh Defendant/applicant: Dapto Imaging Pty Ltd ATF the Dapto Medical Imaging Unit Trust; Eighth Defendant/applicant: Warrawong Imaging Pty Ltd ATF the Warrawong Medical Imaging Unit Trust
Jurisdiction
Australia
Judgment Date
28 February 2025
Procedural Posture
Equity Proceedings (costs Application) / Post Judgment (costs Orders Following Dismissal of Claim; Application to Vary Costs Order)
Outcome
Application granted in part - dispensation with notice filing requirements; varied costs order made so that defendants awarded indemnity costs after Calderbank offer expiry; costs of applications on indemnity basis.
Legal Topics
Costs, Indemnity Costs, Calderbank Offer, Variation of Costs Orders, Dispensation With Procedural Requirements
Equity Civil Procedure Costs Indemnity Costs Calderbank Offer Variation of Costs Orders Dispensation With Procedural Requirements

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 35 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Engadine Medical Imaging Services Pty Ltd ATF the Engadine Unit Trust

First Plaintiff/respondent

Ali Kyatt

Second Plaintiff/respondent

Advanced Imaging Pty Ltd ATF the Kyatt Family Trust

Third Plaintiff/respondent

Mena Ibrahim

First Defendant/applicant

Engadine Medical Imaging Pty Ltd

Second Defendant/applicant

Nabeel Chaudhry

Third Defendant/applicant

Warilla Diagnostic Imaging Pty Ltd ATF Warilla Diagnostic Image Trust trading as Focus Radiology

Fourth Defendant/applicant

Focus Radiology Dapto Pty Ltd

Fifth Defendant/applicant

Focus Radiology Warrawong Pty Ltd

Sixth Defendant/applicant

Dapto Imaging Pty Ltd ATF the Dapto Medical Imaging Unit Trust

Seventh Defendant/applicant

Warrawong Imaging Pty Ltd ATF the Warrawong Medical Imaging Unit Trust

Eighth Defendant/applicant

Procedural Posture

Equity Proceedings (costs Application) / Post Judgment (costs Orders Following Dismissal of Claim; Application to Vary Costs Order)

Legal Issues

  1. 1 Whether notice of motion was filed in time under r 36.16(3A) UCPR for varying costs orders
  2. 2 Whether the requirements to file notice of motion can be dispensed with under s 14 Civil Procedure Act 2005 (NSW) or rules
  3. 3 Whether indemnity costs should be awarded for whole proceedings based on plaintiffs' conduct

Ratio Decidendi

It was appropriate to dispense with the requirement to file a notice of motion for the costs application where sufficient notice was provided to the court and affected parties within time. Plaintiffs should pay defendants' costs on the ordinary basis up to and including 20 November 2023, and on an indemnity basis thereafter, as failure to accept the Calderbank offer made by defendants was unreasonable in all the circumstances. Indemnity costs for the whole proceedings were not justified, as the plaintiffs' conduct was not delinquent or unreasonable prior to that date.

Court Disposition

Application granted in part - dispensation with notice filing requirements; varied costs order made so that defendants awarded indemnity costs after Calderbank offer expiry; costs of applications on indemnity basis.

Orders

  • Order under s 14 Civil Procedure Act 2005 (NSW) dispensing with requirements in rr 36.16(3A) and 18.2(1) UCPR for defendants to file notice of motion for varying costs order
  • Order that plaintiffs pay defendants' costs reserved on 2 May 2023 and 21 June 2023