Taouk v Ho [2018] NSWSC 1854

Taouk v Ho [2018] NSWSC 1854

The appeal failed because the Magistrate's reasons, fairly read, found that Ms Ho, Edifice and Mr Taouk had concluded a binding settlement agreement by correspondence on 19 December 2016 for payment of $73,000.00, and that the later Deed did not overtake or replace that agreement. Mr Taouk's grounds misconceived the Local Court's reasoning and did not establish error on a question of law. The Local Court was entitled to consider the evidence and was not deprived of jurisdiction by ss.59 or 78 Civil and Administrative Tribunal Act 2013. It was also open to the Magistrate to order indemnity costs in light of the conduct of Mr Taouk and Edifice, so leave to appeal the costs order was refused.

Jurisdiction
Australia
Judgment Date
06 December 2018
Procedural Posture
Appeal From Local Court Civil Proceedings on Questions of Law Under the Local Court Act 2007 / Supreme Court Determination of Amended Summons Appealing Local Court Judgment and Costs Orders
Outcome
The Amended Summons was dismissed, leave to appeal against the Local Court costs order was refused, and Mr Taouk was ordered to pay Ms Ho's costs of the Supreme Court proceedings on the ordinary basis, with leave to Ms Ho to apply for costs on a special basis.
Legal Topics
['local Court Appeal on a Question of Law' 'settlement Agreement' 'deed of Settlement and Release' 'ncat Proceedings and Costs Order' 'indemnity Costs']
['civil Procedure' 'appeals' 'contract Law' 'costs'] ['local Court Appeal on a Question of Law' 'settlement Agreement' 'deed of Settlement and Release' 'ncat Proceedings and Costs Order' 'indemnity Costs']

Case Brief

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Procedural Posture

Appeal From Local Court Civil Proceedings on Questions of Law Under the Local Court Act 2007 / Supreme Court Determination of Amended Summons Appealing Local Court Judgment and Costs Orders

Legal Issues

  1. 1 ['Whether the Local Court made an error of law in finding that Mr Taouk was liable to pay money to Ms Ho arising from the settlement of the NCAT proceedings.' 'Whether the Deed became the operative contract or displaced the settlement agreement reached by correspondence on 19 December 2016.' 'Whether the Local Court erred in admitting or having regard to the reasons of Senior Member Meadows of NCAT.' 'Whether ss.59 or 78 Civil and Administrative Tribunal Act 2013 prevented Ms Ho from suing in the Local Court or prevented inclusion of the NCAT costs order in the Local Court judgment.' 'Whether the Local Court made an error of law in ordering indemnity costs, and whether leave should be granted under s.40(2)(c) Local Court Act 2007.']

Ratio Decidendi

The appeal failed because the Magistrate's reasons, fairly read, found that Ms Ho, Edifice and Mr Taouk had concluded a binding settlement agreement by correspondence on 19 December 2016 for payment of $73,000.00, and that the later Deed did not overtake or replace that agreement. Mr Taouk's grounds misconceived the Local Court's reasoning and did not establish error on a question of law. The Local Court was entitled to consider the evidence and was not deprived of jurisdiction by ss.59 or 78 Civil and Administrative Tribunal Act 2013. It was also open to the Magistrate to order indemnity costs in light of the conduct of Mr Taouk and Edifice, so leave to appeal the costs order was refused.

Court Disposition

The Amended Summons was dismissed, leave to appeal against the Local Court costs order was refused, and Mr Taouk was ordered to pay Ms Ho's costs of the Supreme Court proceedings on the ordinary basis, with leave to Ms Ho to apply for costs on a special basis.

Orders

  • ['The Amended Summons is dismissed.' "Mr Taouk is to pay Ms Ho's costs of the proceedings in this Court on the ordinary basis, with leave being granted to Ms Ho to make application for costs on a special basis by way of written submissions to be furnished to Johnson J's Associate, and served upon the legal...