Mahony v El Bayeh (No 2) [2017] NSWSC 325

Mahony v El Bayeh (No 2) [2017] NSWSC 325

Indemnity costs were awarded against the first defendant because his conduct—failing to appear, failing to challenge evidence, and failing to comply with court orders—unreasonably prolonged litigation and increased costs, while no countervailing reason existed for not making such an order.

Parties
Plaintiff: John Francis Mahony; First Defendant: Yousseff El Bayeh; Second Defendant: Ishtar Painting Pty Limited; Third Defendant: Intellect Constructions Pty Limited
Jurisdiction
Australia
Judgment Date
30 March 2017
Procedural Posture
Equity Proceedings / Costs Determination Following Orders
Outcome
Costs awarded; plaintiff's costs to be paid by first defendant on indemnity and ordinary basis.
Legal Topics
Indemnity Costs, Judicial Sale, Self Represented Litigant, Cross Claim
Equity Costs Indemnity Costs Judicial Sale Self Represented Litigant Cross Claim

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Parties

John Francis Mahony

Plaintiff

Yousseff El Bayeh

First Defendant

Ishtar Painting Pty Limited

Second Defendant

Intellect Constructions Pty Limited

Third Defendant

Procedural Posture

Equity Proceedings / Costs Determination Following Orders

Legal Issues

  1. 1 Whether indemnity costs order should be made against the defendant
  2. 2 Appropriate basis for costs where defendant failed to appear, challenge evidence, and comply with orders

Ratio Decidendi

Indemnity costs were awarded against the first defendant because his conduct—failing to appear, failing to challenge evidence, and failing to comply with court orders—unreasonably prolonged litigation and increased costs, while no countervailing reason existed for not making such an order.

Court Disposition

Costs awarded; plaintiff's costs to be paid by first defendant on indemnity and ordinary basis.

Orders

  • First defendant to pay the plaintiff's costs of the proceedings on the summons and amended summons on the indemnity basis.
  • First defendant to pay the plaintiff's costs of the notice of motion for an order giving leave to file the cross claim on the ordinary basis.