Benjamin & Khoury Pty Ltd v Gabriel Rahme (No 2) [2022] NSWSC 279

Benjamin & Khoury Pty Ltd v Gabriel Rahme (No 2) [2022] NSWSC 279

Because the amended notice of motion filed 5 August 2021 was amended so that the only defendant was the first defendant, with the second defendant no longer a defendant, and because the costs thrown away by that amendment had been reserved, the appropriate costs orders were that both defendants pay the plaintiff's costs on the ordinary basis until 5 August 2021 and the first defendant pay the plaintiff's costs on the ordinary basis after 5 August 2021.

Jurisdiction
Australia
Judgment Date
16 March 2022
Procedural Posture
Costs / Costs Determination Following Dismissal of the First Defendant's Amended Notice of Motion
Outcome
Order (2) made on 13 October 2021 was vacated and alternative ordinary costs orders were made against the defendants for different periods.
Legal Topics
['ordinary Costs' 'costs Thrown Away' 'amended Notice of Motion' 'discontinuance']
['civil Procedure' 'costs'] ['ordinary Costs' 'costs Thrown Away' 'amended Notice of Motion' 'discontinuance']

Case Brief

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Procedural Posture

Costs / Costs Determination Following Dismissal of the First Defendant's Amended Notice of Motion

Legal Issues

  1. 1 ['Whether order (2) made on 13 October 2021 should be vacated and replaced with alternative costs orders.' "Whether the first and second defendants should pay the plaintiff's costs of the application until 5 August 2021, and whether the first defendant alone should pay costs after that date."]

Ratio Decidendi

Because the amended notice of motion filed 5 August 2021 was amended so that the only defendant was the first defendant, with the second defendant no longer a defendant, and because the costs thrown away by that amendment had been reserved, the appropriate costs orders were that both defendants pay the plaintiff's costs on the ordinary basis until 5 August 2021 and the first defendant pay the plaintiff's costs on the ordinary basis after 5 August 2021.

Court Disposition

Order (2) made on 13 October 2021 was vacated and alternative ordinary costs orders were made against the defendants for different periods.

Orders

  • ['I vacate my order (2) made on 13 October 2021.' "The first and second defendants are to pay the plaintiff's costs of the application on the ordinary basis until 5 August 2021." "The first defendant is to pay the plaintiff's costs of the application on the ordinary basis after 5 August 2021."]