Peter A Simon Real Estate Pty Ltd v Ghabash & Ors; Chung & Anor v Ghabash (No 2) [2005] NSWCA 18 (16 February 2005)

CITATION: Peter A. Simon Real Estate Pty. Ltd. v. Ghabash & Ors; Chung & Anor. v. Ghabash (No.2) [2005] NSWCA 18

FILE NUMBER(S):

41167/03

41105/03

HEARING DATE(S): Matter dealt with on written submissions in Chambers

JUDGMENT DATE: 16/02/2005

PARTIES:

Peter A. Simon Real Estate Pty. Ltd. - appellant

Michael Ghabash - 1st respondent

Michael Chung and Diana Chung - 2nd & 3rd respondents

JUDGMENT OF: Mason P Hodgson JA McColl JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 5356/00

LOWER COURT JUDICIAL OFFICER: Certoma ADCJ

COUNSEL:

Matter dealt with on written submissions in Chambers

SOLICITORS:

Murrary Stewart & Fogarty, Sydney for PAS Real Estate

McMahons National Lawyers, Sydney for Chungs

CATCHWORDS:

COSTS - Appeal succeeds on ground that plaintiff failed to make out elements of case - Deficiency not articulated by defendant below - Plaintiff ordered to pay costs of trial and appeal.

LEGISLATION CITED:

DECISION:

The following additional orders made in the PAS appeal: 5. Mr. Ghabash to pay PAS's costs of the proceedings. 6. Mr. Ghabash to repay PAS $164,202.30 plus interest at Supreme Court rates from 16 April 2004.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41167/03

CA 41105/03

DC 5356/00

MASON P

HODGSON JA

McCOLL JA

Wednesday 16 February 2005

PETER A. SIMON REAL ESTATE PTY. LTD V. GHABASH & ORS.

CHUNG & ANOR. V. GHABASH

Judgment No.2 (On Orders)

1 MASON P: I agree with Hodgson JA.

2 HODGSON JA: The orders made on 17 December 2004 in this matter reserved leave for submissions to be made on costs by PAS, and for submissions by PAS and the Chungs as to orders for the return of money paid.

3 As regards orders for the return of money, there were no submissions from the Chungs. PAS sought an order for the return of $164,202.30 plus interest at Supreme Court rates from 16 April 2004. There was no submission to the contrary from Mr. Ghabash and I propose that such an order be made.

4 As regards costs, PAS submitted that it was for Mr. Ghabash to make out the necessary elements of a cause of action against PAS. Mr. Ghabash submitted that he and the primary judge were entitled to take the view, having regard to the way the trial was conducted, that if the main factual issue was decided against PAS (as it was), PAS was conceding Mr. Ghabash’s entitlement to relief.

5 I remain of the view that it was for Mr. Ghabash to make out the elements of a cause of action against PAS. If PAS had clearly articulated this at the trial, it is unlikely that the hearing would have been shorter; but there is some chance that the primary judge would have found in favour of PAS and the need for an appeal would thus have been avoided.

6 I do not think this consideration is enough to alter the usual result as to costs of the trial or the appeal.

7 Accordingly, I propose the following additional orders in the PAS appeal:

5. Mr. Ghabash to pay PAS’s costs of the proceedings.

6. Mr. Ghabash to repay PAS $164,202.30 plus interest at Supreme Court rates from 16 April 2004.

8 McCOLL JA: I agree with Hodgson JA.

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LAST UPDATED: 18/02/2005