Saky Tomas v David Oshana [2019] NSWDC 176

Saky Tomas v David Oshana [2019] NSWDC 176

The proceedings were justified in the District Court given their complexity, the size of the claim as particularised, and the allegations of fraud. However, as the plaintiff's actual recovery was limited to out-of-pocket expenses and did not result in a positive outcome beyond what had already been paid, only a proportion of the costs are warranted. The defendant is ordered to pay one-third of the plaintiff’s assessed costs on an ordinary basis.

Parties
Plaintiff: Saky Tomas; Defendant: David Oshana
Jurisdiction
Australia
Judgment Date
13 February 2019
Procedural Posture
Civil / Post Settlement (costs Decision)
Outcome
Order the defendant to pay one-third of the plaintiff's costs of the proceedings assessed on an ordinary basis.
Legal Topics
Costs Orders, District Court Jurisdiction, Motor Vehicle Accident Litigation, Commencement in Appropriate Court, Allegations of Fraud, Assessment of Damages
Costs Personal Injury Costs Orders District Court Jurisdiction Motor Vehicle Accident Litigation Commencement in Appropriate Court Allegations of Fraud Assessment of Damages

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Parties

Saky Tomas

Plaintiff

David Oshana

Defendant

Procedural Posture

Civil / Post Settlement (costs Decision)

Legal Issues

  1. 1 Whether the commencement and continuation of proceedings in the District Court, rather than the Local Court, was warranted given the judgment sum was less than $40,000
  2. 2 What proportion of the plaintiff's costs, if any, should be paid by the defendant in light of the settlement

Ratio Decidendi

The proceedings were justified in the District Court given their complexity, the size of the claim as particularised, and the allegations of fraud. However, as the plaintiff's actual recovery was limited to out-of-pocket expenses and did not result in a positive outcome beyond what had already been paid, only a proportion of the costs are warranted. The defendant is ordered to pay one-third of the plaintiff’s assessed costs on an ordinary basis.

Court Disposition

Order the defendant to pay one-third of the plaintiff's costs of the proceedings assessed on an ordinary basis.

Orders

  • Judgment for the plaintiff in the sum of nil as per settlement (damages agreed at $8,600 less out-of-pocket expenses and fees matching that sum)
  • The defendant is to pay one-third of the plaintiff’s costs of the proceedings assessed on an ordinary basis