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

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

Because both the Company and Mr El Ali had some practical success on the amended cross-claim, no costs order should be made as between them, while the liquidators should pay Mr El Ali's costs after abandoning their claims. The security for costs motion was dismissed as part of the agreed resolution rather than after any party succeeded, so no costs order should be made. A stay of enforcement should be conditioned on timely prosecution of costs assessment, but payment into Court was not justified absent evidence of dissipation or frustration of judgment. The agreed stay regime practically accepted the set-off defence, and the Court had power to order that assessed costs in Mr El Ali's...

Jurisdiction
Australia
Judgment Date
07 June 2019
Procedural Posture
Equity Proceedings Involving an Amended Cross Claim, Judgment on Admissions and a Security for Costs Motion / Determination of Final Orders After Hearing of Notices of Motion
Outcome
Judgment by admissions entered for the third cross-claimant against the cross-defendant, the amended cross-claim otherwise dismissed, security for costs motion dismissed, enforcement stayed on conditions, and set-off ordered following costs assessment.
Legal Topics
['cross Claims' 'judgment by Admissions' 'security for Costs' 'stay of Enforcement' 'set Off of Costs Orders Against Judgment' 'costs Discretion']
['civil Procedure' 'costs'] ['cross Claims' 'judgment by Admissions' 'security for Costs' 'stay of Enforcement' 'set Off of Costs Orders Against Judgment' 'costs Discretion']

Case Brief

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Procedural Posture

Equity Proceedings Involving an Amended Cross Claim, Judgment on Admissions and a Security for Costs Motion / Determination of Final Orders After Hearing of Notices of Motion

Legal Issues

  1. 1 ['What costs orders should be made in relation to the amended cross-claim and the security for costs motion.' 'Whether further conditions should be imposed in relation to the stay of the judgment by admissions.' 'Whether an order should be made giving effect to the set-off defence raised by Mr El Ali.']

Ratio Decidendi

Because both the Company and Mr El Ali had some practical success on the amended cross-claim, no costs order should be made as between them, while the liquidators should pay Mr El Ali's costs after abandoning their claims. The security for costs motion was dismissed as part of the agreed resolution rather than after any party succeeded, so no costs order should be made. A stay of enforcement should be conditioned on timely prosecution of costs assessment, but payment into Court was not justified absent evidence of dissipation or frustration of judgment. The agreed stay regime practically accepted the set-off defence, and the Court had power to order that assessed costs in Mr El Ali's...

Court Disposition

Judgment by admissions entered for the third cross-claimant against the cross-defendant, the amended cross-claim otherwise dismissed, security for costs motion dismissed, enforcement stayed on conditions, and set-off ordered following costs assessment.

Orders

  • ['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...