JJES Pty Ltd v Sayan (No 2) [2014] NSWSC 975

JJES Pty Ltd v Sayan (No 2) [2014] NSWSC 975

The defendant was entitled to indemnity costs after 2 February 2012 because its offer of compromise was a genuine compromise and no reason was shown to displace the prima facie operation of the rules. A non-party costs order against Emily Navaei was justified because JJES Pty Ltd was an entity of straw, she was its sole director and shareholder, she played the largest part in the litigation, stood to gain from any recovery, and her conduct of the litigation was unreasonable in relevant respects. The interests of justice therefore required that she be liable for the defendant's costs on the same basis as the plaintiff, including indemnity costs after the offer of compromise.

Jurisdiction
Australia
Judgment Date
04 July 2014
Procedural Posture
Costs Application / Post Judgment Application to Vary Costs Order and for Non Party Costs Order
Outcome
Costs order varied; indemnity costs awarded after 2 February 2012; non-party costs order made against Emily Navaei.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'non Party Costs Order' 'director Liability for Costs']
['civil Procedure' 'costs'] ['offer of Compromise' 'indemnity Costs' 'non Party Costs Order' 'director Liability for Costs']

Case Brief

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Procedural Posture

Costs Application / Post Judgment Application to Vary Costs Order and for Non Party Costs Order

Legal Issues

  1. 1 ['Whether the defendant was entitled to costs on the ordinary basis up to 2 February 2012 and on an indemnity basis thereafter because of an offer of compromise.' 'Whether a non-party costs order should be made against Emily Navaei under s 98(1) of the Civil Procedure Act 2005 (NSW).' 'Whether the interests of justice required making Emily Navaei liable for the same costs order as the unsuccessful plaintiff company.']

Ratio Decidendi

The defendant was entitled to indemnity costs after 2 February 2012 because its offer of compromise was a genuine compromise and no reason was shown to displace the prima facie operation of the rules. A non-party costs order against Emily Navaei was justified because JJES Pty Ltd was an entity of straw, she was its sole director and shareholder, she played the largest part in the litigation, stood to gain from any recovery, and her conduct of the litigation was unreasonable in relevant respects. The interests of justice therefore required that she be liable for the defendant's costs on the same basis as the plaintiff, including indemnity costs after the offer of compromise.

Court Disposition

Costs order varied; indemnity costs awarded after 2 February 2012; non-party costs order made against Emily Navaei.

Orders

  • ["I revoke order 2 pronounced on 8 May 2014 and, in its place, order the plaintiff to pay the defendant's costs of and incidental to the proceedings on the ordinary basis up to 2 February 2012 and thereafter on an indemnity basis, forthwith after they had been agreed or assessed." "Under section 98(1) Civil...