Taouk v Ho (No. 2)

JOHNSON J: On 6 December 2018, I gave judgment in this matter dismissing the Amended Summons and making an order that Mr Taouk pay Ms Ho’s costs of the proceedings: Taouk v Ho [2018] NSWSC 1954. At the conclusion of the judgement (at [121]-[122]), I stated that if Ms Ho seeks an order for costs on a special basis (other than the ordinary basis), a written submission should be furnished in support of that application.

Mr Freeman, counsel for Ms Ho, has made application that Mr Taouk pay Ms Ho’s costs of the proceedings on an indemnity basis. In written submissions dated 10 December 2018, Mr Freeman relied upon a number of findings and statements made by the Court in the judgment dismissing the Amended Summons. In summary, Mr Freeman submitted that costs of the appeal should be ordered on an indemnity basis in circumstances where Mr Taouk:

Mr Freeman submitted, as well, that the approach of Mr Taouk to the litigation had the effect that the overall costs bill incurred by Ms Ho was well in excess of the amount in issue. He pointed, as well, to the impact of wasted costs in the proceedings.

In written submissions dated 13 December 2018, Mr Ekes, solicitor for Mr Taouk, submitted that no basis had been established by Ms Ho for a costs order on an indemnity basis. It was submitted that the grounds were reasonably arguable and that there was no relevant delinquency to found an order for indemnity costs.

In determining one of the grounds of appeal which alleged error of law on the part of the Magistrate in ordering Mr Taouk to pay costs on an indemnity basis in the Local Court, I outlined the principles with respect to indemnity costs in Taouk v Ho at [104]-[110]:

I am satisfied that the arguments advanced for Mr Taouk on the appeal to this Court were misconceived and without merit. Added to this was the history of the proceedings and the approach of Mr Taouk to them. I said at [111]-[112]:

In my view, similar considerations operate with respect to this appeal so that Ms Ho has demonstrated a proper basis for the Court to make an order that Mr Taouk pay the costs of the proceedings in this Court on an indemnity basis. In reaching this conclusion, I have taken into account the principles with respect to indemnity costs set out earlier (at [5]).

This is not merely a case of litigation being contested and lost which does not, of itself, expose the losing party to an order for costs on an indemnity basis. Rather, I am satisfied that this is a case of completely unmeritorious arguments being advanced against the background of significant failures on the part of Mr Taouk to comply with his obligations under s.56 Civil Procedure Act 2005. I am satisfied that Mr Taouk has acted unreasonably prior to the commencement of this appeal, and in the conduct of the appeal itself, so as to warrant an order for costs on an indemnity basis.

For these reasons, I vary the costs order contained in Taouk v Ho at [122](b) and order that Mr Taouk pay Ms Ho’s costs of the proceedings in this Court on an indemnity basis.