CE Sales Pty Ltd v Elyas

Legislation Cited: N.A.

Cases Cited: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397; [1988] FCA 364
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Texts Cited: N.A.

Category: Costs

Parties: CE Sales Pty Ltd (Plaintiff)
Mark Elyas (First Defendant)

Representation: Counsel:
H Mann (Plaintiff)
No other appearances
Solicitors:
Bartier Perry (Plaintiff)
Invictus Legal (First Defendant)

File Number(s): 2024/266344

Publication restriction: N.A.

JUDGMENT

1. On 9 April 2025, I made the following orders:

2. Paragraphs [16]-[18] of the First Defendant’s Defence are struck out.

3. Judgment against the First Defendant in the amount of $3,324,463.71.

4. The First Defendant is to pay interest pursuant to section 100 of the Civil Procedure Act 2005 (NSW).

5. The First Defendant is to pay the costs of the Plaintiff’s Notice of Motion filed on 24 January 2025.

6. I made the orders as to costs without giving the Plaintiff an opportunity to make submissions on costs. That was an oversight because the Plaintiff asked for that opportunity at the hearing.

7. I gave leave to the parties to make short further written submissions on costs. The Plaintiff took up that opportunity. The First Defendant did not.

8. The Plaintiff seeks an order for indemnity costs. It contends that there has been a relevant delinquency on the part of the First Defendant that justifies an exceptional costs order: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [44]. The Plaintiff contends that the First Defendant, properly advised, should have known that it had no chance of success: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 at [4]. It submitted that none of the arguments raised by the First Defendant at the hearing had any merit.

9. The Plaintiff relied on correspondence to the First Defendant on 17 December 2024 and 13 January 2025, by which the Plaintiff asserted that it would succeed in an application to strike out [16]-[18] of the Defence and secure judgment based on the First Defendant’s admissions. The Plaintiff foreshadowed an application for indemnity costs.

10. The Plaintiff succeeded in its application to strike out part of the First Defendant’s Defence and obtain judgment based on the First Defendant’s admissions. I accept that the contentions advanced for the First Defendant lacked much merit. But I would not go so far as to conclude that there was a delinquency to warrant an order for indemnity costs. It is a strong conclusion to say that a party, properly advised, should have known that it had no chance of success. That conclusion, if drawn in this case, would give rise to a presumption that the First Defendant resisted the Plaintiff’s application for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397; [1988] FCA 364. I am not prepared to go that far in this case. This case is not sufficiently exceptional to justify a departure from the usual position.

11. It follows that the orders that I made on 9 April 2025 can remain undisturbed.