Rahme v Benjamin & Khoury Pty Ltd [2023] NSWSC 244

Rahme v Benjamin & Khoury Pty Ltd [2023] NSWSC 244

Procedural fairness was denied to Mrs Rahme as she was not given the opportunity to make submissions before the costs order was made. The power to order costs was confined by the reservation of the costs issue by Cavanagh J to costs 'thrown away' by the amendment. It was not appropriate to order broader costs against Mrs Rahme beyond those directly resulting from the amendment. There was no evidence of an ulterior purpose or that the costs were de minimis. The appeal was allowed, the impugned costs orders were set aside, and more confined costs orders were made.

Jurisdiction
Australia
Judgment Date
23 March 2023
Procedural Posture
Appeal / Judgment on Appeal Against Costs Orders
Outcome
Appeal allowed; previous costs orders set aside; new orders made regarding costs.
Legal Topics
['costs' 'procedural Fairness' 'appeal' 'amendment of Motions']
['civil Procedure'] ['costs' 'procedural Fairness' 'appeal' 'amendment of Motions']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal Against Costs Orders

Legal Issues

  1. 1 ['Whether the applicant, Mrs Rahme, was denied procedural fairness when costs orders were made against her without an opportunity to be heard' 'Whether it was lawful or appropriate to make costs orders against the applicant after she ceased to be a joint applicant on the motion' 'Whether costs incurred as a result of the amendment were more than de minimis' 'Whether the costs order sought for an ulterior purpose' 'Scope of power under previous orders regarding costs']

Ratio Decidendi

Procedural fairness was denied to Mrs Rahme as she was not given the opportunity to make submissions before the costs order was made. The power to order costs was confined by the reservation of the costs issue by Cavanagh J to costs 'thrown away' by the amendment. It was not appropriate to order broader costs against Mrs Rahme beyond those directly resulting from the amendment. There was no evidence of an ulterior purpose or that the costs were de minimis. The appeal was allowed, the impugned costs orders were set aside, and more confined costs orders were made.

Court Disposition

Appeal allowed; previous costs orders set aside; new orders made regarding costs.

Orders

  • ['The appeal is allowed.' 'The orders made by Associate Justice Harrison on 16 March 2022 so far as they concern Dana Rahme are set aside.' "In lieu thereof: (a) In relation to costs up to and including 5 August 2021: (i) Subject to (ii), order that Gabriel Rahme pay Benjamin & Khoury Pty Ltd's costs of the...