MacKenzie v Ibrahim [2016] NSWSC 736

MacKenzie v Ibrahim [2016] NSWSC 736

The Ibrahim parties acted unreasonably by failing to take up in a timely and organised way the longstanding opportunity for their accountant to engage directly with the trust accountant, by not analysing and providing to their accountant documents already in their solicitors' possession, and by delaying resolution of the accounting issues even though the material later supplied in refined form was substantially already available. However, the MacKenzie parties also bore responsibility because they could have organised and refined the documents earlier and were not sufficiently helpful. The Calderbank letter did not justify indemnity costs because it offered to buy out shares in the trust,...

Jurisdiction
Australia
Judgment Date
02 June 2016
Procedural Posture
Costs Application in Equity Proceedings Concerning an Insolvent Property Development Joint Venture / After Claim and Cross Claim Were Dismissed by Consent; Ex Tempore Judgment on Disputed Costs for the Period From 18 September 2015 to 23 February 2016 and the Costs Hearing
Outcome
The MacKenzie parties succeeded in part: the Ibrahim parties were ordered to pay 50 per cent of the MacKenzie parties' relevant costs, but indemnity costs and the full costs claimed were refused.
Legal Topics
['costs After Proceedings Discontinued or Dismissed by Consent' 'unreasonable Conduct' 'calderbank Offer' 'disclosure of Trust and Joint Venture Accounting Records' 'property Development Joint Venture']
['civil Procedure' 'costs' 'equity'] ['costs After Proceedings Discontinued or Dismissed by Consent' 'unreasonable Conduct' 'calderbank Offer' 'disclosure of Trust and Joint Venture Accounting Records' 'property Development Joint Venture']

Case Brief

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Procedural Posture

Costs Application in Equity Proceedings Concerning an Insolvent Property Development Joint Venture / After Claim and Cross Claim Were Dismissed by Consent; Ex Tempore Judgment on Disputed Costs for the Period From 18 September 2015 to 23 February 2016 and the Costs Hearing

Legal Issues

  1. 1 ['Whether the Court should order costs although the substantive claim and cross-claim had been dismissed by consent and no merits judgment was delivered.' "Whether the Ibrahim parties acted so unreasonably in pursuing information and accounting issues after settlement became likely that they should pay the MacKenzie parties' costs." 'Whether the MacKenzie parties were entitled to indemnity costs based on a Calderbank letter dated 28 September 2015.' 'Whether the Ibrahim parties had abandoned their claim for an account so that there was no basis for costs relating to further accounting information.']

Ratio Decidendi

The Ibrahim parties acted unreasonably by failing to take up in a timely and organised way the longstanding opportunity for their accountant to engage directly with the trust accountant, by not analysing and providing to their accountant documents already in their solicitors' possession, and by delaying resolution of the accounting issues even though the material later supplied in refined form was substantially already available. However, the MacKenzie parties also bore responsibility because they could have organised and refined the documents earlier and were not sufficiently helpful. The Calderbank letter did not justify indemnity costs because it offered to buy out shares in the trust,...

Court Disposition

The MacKenzie parties succeeded in part: the Ibrahim parties were ordered to pay 50 per cent of the MacKenzie parties' relevant costs, but indemnity costs and the full costs claimed were refused.

Orders

  • ['Order that the defendants/cross claimants ("the Ibrahim parties") pay 50 per cent of the plaintiff/cross defendants\' ("the MacKenzie parties") costs of the proceedings from 20 November 2015 to 23 February 2016.' "Order the Ibrahim parties to pay 50 per cent of the MacKenzie parties' costs incurred on and in...