Peter A. Simon Real Estate Pty. Ltd. v. Ghabash & Ors; Chung & Anor. v. Ghabash (No.2)

MASON P: I agree with Hodgson JA.

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.

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.

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.

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.

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

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.

McCOLL JA: I agree with Hodgson JA.