The Lebanese Moslem Association v Dandan [2022] NSWSC 1769

The Lebanese Moslem Association v Dandan [2022] NSWSC 1769

The abandoned competition covenant claim involved different issues of construction, reasonableness and damages from the remaining claims, so the costs thrown away by the amendment were discrete and would not be affected by the ultimate result. Completion of the proceedings was a long way off. Although the absence of retainer documents did not warrant refusal, and LMA's reasonableness made little practical difference, the claimed amounts were put too broadly and the evidence of quantum was unsatisfactory. Using a broad assessment, the Court fixed $20,000 to be paid on account and made no order as to the costs of the motion.

Jurisdiction
Australia
Judgment Date
23 December 2022
Procedural Posture
Costs Application for Payment of a Lump Sum on Account of an Interlocutory Costs Order / Notice of Motion Filed 25 November 2022 Determined on the Papers After Costs Thrown Away Order Made on 26 October 2022
Outcome
Application granted in part; LMA ordered to pay $20,000 to Ms Dandan on account of the costs liability under the 26 October 2022 orders, with no order as to costs of the motion.
Legal Topics
['interlocutory Costs Order' 'costs Thrown Away by Amendment' 'payment on Account of Costs' 'abandoned Competition Covenant Claim' 'assessment and Payment Forthwith']
['costs' 'civil Procedure'] ['interlocutory Costs Order' 'costs Thrown Away by Amendment' 'payment on Account of Costs' 'abandoned Competition Covenant Claim' 'assessment and Payment Forthwith']

Case Brief

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Procedural Posture

Costs Application for Payment of a Lump Sum on Account of an Interlocutory Costs Order / Notice of Motion Filed 25 November 2022 Determined on the Papers After Costs Thrown Away Order Made on 26 October 2022

Legal Issues

  1. 1 ["Whether the first defendant should receive a lump sum payment on account of the plaintiff's liability for costs thrown away by reason of amendment." 'Whether the costs thrown away by abandoning the competition covenant claim were discrete costs unaffected by the ultimate result in the proceedings.' 'Whether the fact that completion of the proceedings was a long way off supported an order for payment on account.' 'Whether LMA acted unreasonably in bringing the claim based on the competition covenant.' 'Whether the absence of a written retainer agreement or costs estimate prevented an order for payment on account.' 'What amount should be fixed on account given the evidence of quantum.']

Ratio Decidendi

The abandoned competition covenant claim involved different issues of construction, reasonableness and damages from the remaining claims, so the costs thrown away by the amendment were discrete and would not be affected by the ultimate result. Completion of the proceedings was a long way off. Although the absence of retainer documents did not warrant refusal, and LMA's reasonableness made little practical difference, the claimed amounts were put too broadly and the evidence of quantum was unsatisfactory. Using a broad assessment, the Court fixed $20,000 to be paid on account and made no order as to the costs of the motion.

Court Disposition

Application granted in part; LMA ordered to pay $20,000 to Ms Dandan on account of the costs liability under the 26 October 2022 orders, with no order as to costs of the motion.

Orders

  • ["Order that within 28 days the plaintiff pay to the first defendant the sum of $20,000 on account of the plaintiff's costs liability under the orders of the Court made on 26 October 2022." 'No order as to the costs of the motion.']