Bachour Enterprises Pty Ltd v Munzer (No 2) (costs) [2025] NSWSC 30

Bachour Enterprises Pty Ltd v Munzer (No 2) (costs) [2025] NSWSC 30

The plaintiff, having wholly succeeded in its claim for specific performance, is entitled to its costs on the ordinary basis, save for costs referable to the defendants' non-compliance with discovery, for which indemnity costs are warranted for the relevant period. The moneys held in trust should be paid to the defendant (vendor) upon completion of their contractual obligations, subject to plaintiff’s consent or the right to apply for injunctive relief after notice. Indemnity costs are not justified for the whole proceeding as the main 'delinquency' concerns arose late; nor are either side entitled to indemnity costs based on Calderbank offers as neither demonstrated unreasonableness in...

Parties
Plaintiff: Bachour Enterprises Pty Ltd; First Defendant: Simon Munzer; Second Defendant: Paradise CC Corp Pty Ltd
Jurisdiction
Australia
Judgment Date
13 February 2025
Procedural Posture
Costs and Release of Funds Following Commercial Contract Dispute / Post Trial; Costs Judgment and Orders Regarding Funds Held in Trust
Outcome
Plaintiff wholly succeeded; trust funds to be released to first defendant conditional on contract performance; costs on ordinary basis except indemnity basis for discovery non-compliance period.
Legal Topics
Costs, Release of Trust Funds, Discovery Obligations, Specific Performance
Equity Civil Procedure Costs Release of Trust Funds Discovery Obligations Specific Performance

Case Brief

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Parties

Bachour Enterprises Pty Ltd

Plaintiff

Simon Munzer

First Defendant

Paradise CC Corp Pty Ltd

Second Defendant

Procedural Posture

Costs and Release of Funds Following Commercial Contract Dispute / Post Trial; Costs Judgment and Orders Regarding Funds Held in Trust

Legal Issues

  1. 1 Whether trust monies held in solicitor's account should be released to the vendor
  2. 2 Whether indemnity costs should be awarded for discovery delinquency or non-acceptance of Calderbank offers
  3. 3 Appropriate basis and allocation for costs orders following success in contract dispute

Ratio Decidendi

The plaintiff, having wholly succeeded in its claim for specific performance, is entitled to its costs on the ordinary basis, save for costs referable to the defendants' non-compliance with discovery, for which indemnity costs are warranted for the relevant period. The moneys held in trust should be paid to the defendant (vendor) upon completion of their contractual obligations, subject to plaintiff’s consent or the right to apply for injunctive relief after notice. Indemnity costs are not justified for the whole proceeding as the main 'delinquency' concerns arose late; nor are either side entitled to indemnity costs based on Calderbank offers as neither demonstrated unreasonableness in...

Court Disposition

Plaintiff wholly succeeded; trust funds to be released to first defendant conditional on contract performance; costs on ordinary basis except indemnity basis for discovery non-compliance period.

Orders

  • Defendants' solicitor to transfer $116,282.82 to the first defendant upon: (a) consent of the plaintiff; or (b) 14 days after giving notice that obligations under cl 3(d) of Heads of Agreement are considered performed, unless plaintiff applies to injunct.
  • Defendants to pay plaintiff’s costs of proceedings on ordinary basis, except costs relating to correspondence and court appearances from 22 April 2024 to 23 August 2024 regarding defendants’ discovery, which are to be paid on indemnity basis.