Prodromos Anastasi Foukkare v Angreb Pty Limited & Ors [2006] NSWCA 335

Prodromos Anastasi Foukkare v Angreb Pty Limited & Ors [2006] NSWCA 335

The costs discretion miscarried because the trial judge treated the appellant's refusal of the 21 April 2005 offer as unreasonable when the relevant offer did not properly effect, or require consent to, a discontinuance and was framed outside the ordinary discontinuance procedure. After the Family Court made declarations resolving substantially the same issues, the Supreme Court proceedings had no utility and their continuation was an abuse of process. The respondents, as prosecuting parties, should have discontinued and sought any costs order under UCPR 42.19. The appellant was not unreasonable in refusing the respondents' proposed formula, and it was reasonable in substance for him to...

Jurisdiction
Australia
Judgment Date
28 November 2006
Procedural Posture
Application for Leave to Appeal and Appeal Against Costs Orders in Discontinued Supreme Court Equity Division Proceedings / Court of Appeal
Outcome
Leave to appeal granted and appeal allowed.
Legal Topics
['abuse of Process' 'discontinuance of Proceedings' 'costs After Discontinuance' 'leave to Appeal Against Costs Order' 'uniform Civil Procedure Rules 2005 (nsw) Rr 12.1, 12.2, 42.19']
['practice and Procedure' 'costs'] ['abuse of Process' 'discontinuance of Proceedings' 'costs After Discontinuance' 'leave to Appeal Against Costs Order' 'uniform Civil Procedure Rules 2005 (nsw) Rr 12.1, 12.2, 42.19']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal Against Costs Orders in Discontinued Supreme Court Equity Division Proceedings / Court of Appeal

Legal Issues

  1. 1 ['Whether continuation of the Supreme Court proceedings after related Family Court proceedings were resolved constituted an abuse of process by the respondents.' 'Whether the appellant acted unreasonably in refusing offers made by the respondents concerning discontinuance or disposition of the Supreme Court proceedings and costs.' 'Whether the trial judge erred in awarding costs to the respondents from 21 April 2005 and costs of the Cross-Claims.' 'Whether the respondents should have discontinued the Supreme Court proceedings and borne costs under UCPR 42.19 unless the Court ordered otherwise.']

Ratio Decidendi

The costs discretion miscarried because the trial judge treated the appellant's refusal of the 21 April 2005 offer as unreasonable when the relevant offer did not properly effect, or require consent to, a discontinuance and was framed outside the ordinary discontinuance procedure. After the Family Court made declarations resolving substantially the same issues, the Supreme Court proceedings had no utility and their continuation was an abuse of process. The respondents, as prosecuting parties, should have discontinued and sought any costs order under UCPR 42.19. The appellant was not unreasonable in refusing the respondents' proposed formula, and it was reasonable in substance for him to...

Court Disposition

Leave to appeal granted and appeal allowed.

Orders

  • ['Grant leave to appeal;' 'Appeal allowed;' "The respondents are to pay the appellant's costs of each of the proceedings No. 5341 of 2003 and No. 5342 of 2003;" "The respondents are to pay the costs of the summons for leave to appeal and of the appeal but are to have a certificate under the Suitors' Fund Act 1951...