Morad v El-Ashey (No 2) [2017] FCA 1612

Morad v El-Ashey (No 2) [2017] FCA 1612

Indemnity costs were refused because, although summary judgment had been entered against Mr Morad, it did not follow that he had no sufficient basis reasonably to institute and pursue the proceeding until the summary judgment application was determined. The application of the relevant provisions of the Telecommunications (Interception and Access) Act 1979 (Cth), particularly ss 108 and 133, was not straightforward, the erroneous legal propositions were not so egregiously wrong as to justify indemnity costs, the unsuccessful party's failure to withdraw on proposed terms was not inherently unreasonable, and the alleged conduct did not show non-compliance with s 37N sufficient to justify...

Jurisdiction
Australia
Judgment Date
21 December 2017
Procedural Posture
Costs Determination Following Summary Judgment / Determined on the Papers
Outcome
The Court declined to order indemnity costs and ordered the applicant to pay the respondent's costs on a party/party basis.
Legal Topics
['indemnity Costs' 'party/party Costs' 'summary Judgment' 'overarching Purpose Obligations']
['costs' 'federal Civil Procedure'] ['indemnity Costs' 'party/party Costs' 'summary Judgment' 'overarching Purpose Obligations']

Case Brief

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Procedural Posture

Costs Determination Following Summary Judgment / Determined on the Papers

Legal Issues

  1. 1 ["Whether the applicant should pay the respondent's costs on an indemnity basis rather than a party/party basis." "Whether the applicant's commencement or continuation of the proceeding, alleged failure to accept withdrawal invitations, or alleged non-compliance with overarching purpose obligations justified indemnity costs."]

Ratio Decidendi

Indemnity costs were refused because, although summary judgment had been entered against Mr Morad, it did not follow that he had no sufficient basis reasonably to institute and pursue the proceeding until the summary judgment application was determined. The application of the relevant provisions of the Telecommunications (Interception and Access) Act 1979 (Cth), particularly ss 108 and 133, was not straightforward, the erroneous legal propositions were not so egregiously wrong as to justify indemnity costs, the unsuccessful party's failure to withdraw on proposed terms was not inherently unreasonable, and the alleged conduct did not show non-compliance with s 37N sufficient to justify...

Court Disposition

The Court declined to order indemnity costs and ordered the applicant to pay the respondent's costs on a party/party basis.

Orders

  • ["The applicant pay the respondent's costs of and incidental to the proceeding, including the respondent's costs of her interlocutory application dated 14 June 2017, to be taxed on a party/party basis in default of agreement."]