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[2026] NSWSC 1068
Supreme Court of NSW
2026-09-07
Pike J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Di Liristi v Yosef (No 3) [2026] NSWSC 1068
Hearing dates: On the papers
Date of orders: 7 September 2026
Decision date: 07 September 2026
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision: (1) The plaintiff pay Wassim Sadek’s and Sadek Lawyers’ costs of, and incidental to, their participation as respondents to the further amended notice of motion dated 26 June 2026 on the ordinary basis, as agreed or assessed, such costs payable forthwith.
(2) The plaintiff pay the defendant’s costs of, and incidental to, the further amended notice of motion dated 26 June 2026 on the ordinary basis, as agreed or assessed.
Catchwords: COSTS — interlocutory application — motion seeking to restrain defendant’s solicitor from acting — application to restrain solicitor dismissed — where restraint application was the primary and only contested substantive issue — where other components of motion resolved without contested determination
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005, rr 42.1, 42.7
Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Butcher v Balog [2017] NSWSC 1409
Chamberlain v Kiloren Pty Ltd (Costs of Motion) [2026] NSWSC 643
Di Liristi v Yosef (No 2) [2026] NSWSC 925
Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Texts Cited: Nil
Category: Costs
Parties: A Di Liristi (Plaintiff) (Self-represented)
Sarah Shahata Abd Elmeseh Yosef (Defendant)
Representation: Counsel:
P Afshar and A Rizk (Defendant)
Solicitors:
Sadek Lawyers (Defendant)
File Number(s): 2023/00288890
Publication restriction: Nil
On 5 August 2026, I delivered judgment on a motion in these proceedings dismissing the plaintiff’s application to restrain the defendant’s solicitor, Wassim Sadek, and Sadek Lawyers (collectively, the Sadek P****arties) from acting for the defendant: Di Liristi v Yosef (No 2) [2026] NSWSC 925 (Primary J****udgment or PJ).
These reasons assume familiarity with, and maintain the same definitions and abbreviations as, the Primary Judgment.
The further amended notice of motion filed 26 June 2026 (Motion) had three components: (i) an application to vacate the hearing dates then fixed for September 2026 (Adjournment Application); (ii) the application to restrain the Sadek Parties from acting (Restraint Application); and (iii) an application concerning compliance with a notice to produce (NTP application).
The Restraint Application, being paragraphs 2 to 5 of the Motion, was dismissed. The Adjournment Application had earlier been resolved by consent. At the conclusion of the hearing, I was informed that the NTP Application had also been resolved: PJ at [58]–[60].
I directed the parties to confer as to costs. They were unable to agree. I have had the benefit of written material provided by the parties, including the applicant's short supplementary submissions concerning the NTP application. Neither party requested an oral hearing.
There were two sets of respondents to the Motion – the Sadek Parties and the defendant.
The Sadek Parties seek their costs of, and incidental to, the Motion on the ordinary basis, payable forthwith. The defendant seeks her costs of the Motion on the ordinary basis or, alternatively, 90 per cent of those costs.
The respondents contend that the Restraint Application was the primary and only contested substantive issue. They submit that almost all of the evidence, written submissions, hearing time and associated costs concerned that application. Furthermore, they say that the other two components were resolved without a contested determination and produced negligible costs.
Conversely, the applicant contends that he achieved substantial success because the September hearing dates were indeed vacated and because of the outcome of the NTP Application. In supplementary submissions he relies upon his affidavit of 20 July 2026. In particular, he relies upon Annexure G, which contains an email sent to Mr Sadek on 1 June 2026 attaching notices to produce dated 29 May 2026 and 31 August 2022.
The applicant also takes issue with the respondents’ submission that the defendant had never received the notice to produce referred to in the motion. He observes that submissions are not evidence and asks that the Court assess that assertion against the affidavit evidence and the contemporaneous email. He does not seek to reopen the substantive determination of the Motion.
The Court’s power to award costs is discretionary: s 98 of C**ivil P**rocedure A**ct 2005 (NSW). Under r 42.1 of the Uniform Civil Procedure Rules 2005 (UCPR), if the Court makes an order as to costs, costs are to follow the event unless it appears that some other order could be made.
Rule 42.7 of the UCPR provides that, unless the Court otherwise orders, the costs of an interlocutory application are to be paid and otherwise dealt with in the same way as the general costs of the proceedings and do not become payable until the conclusion of the proceedings.
As I recently observed in Chamberlain v Kiloren Pty Ltd (Costs of Motion) [2026] NSWSC 643 at [19]-[25], r 42.7 does not displace the general rule in 42.1. A discrete interlocutory application may have an event for costs purposes. Dismissal of the application is an event, even where the application was neither frivolous nor improperly brought.
Where there are multiple issues, the Court ordinarily does not attempt to differentiate between each issue on which the generally successful party succeeded or failed. A different order may be appropriate where an issue was clearly dominant or separable and occupied a significant part of the hearing. However, the exercise is impressionistic and mathematical precision is illusory: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 (Bostik) at [38].
Where an issue has been resolved without a hearing on the merits, the Court should not conduct a hypothetical trial merely to determine costs. Relevant considerations include whether one party effectively surrendered and whether there was a marked difference in the reasonableness of the parties’ conduct: Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625; [1997] HCA 6.
The Sadek Parties were joined as respondents to the Motion solely because they were directly affected by the relief sought in the Restraint Application. They are not parties to the underlying proceedings and had no involvement in the Adjournment Application or the NTP Application.
In my view, the Sadek Parties were wholly successful. The application to prevent them from acting was dismissed after a contested hearing. There was no disentitling conduct and no reason to depart from the ordinary rule that costs follow the event.
Consequently, it follows that the applicant should pay the Sadek Parties costs of, and incidental to, their participation in the Motion on the ordinary basis, as agreed or assessed.
I am also satisfied that costs should be payable forthwith for the following three reasons. First, the Sadek Parties are not parties to the substantive proceedings. Secondly, the issue on which they were joined was distinct from the underlying real property dispute. Finally, and most importantly, their participation as respondents is at an end. In my view, these circumstances justify an order under r 42.7(2) that their costs be payable before the conclusion of the proceedings: Butcher v Balog [2017] NSWSC 1409 at [46]-[47].
The defendant was also wholly successful on the Restraint Application. That application was the dominant component of the Motion by a considerable margin. It was the only component that required a contested evidentiary hearing and determination. The evidence, objections, cross-examination, and extensive written and oral submissions identified in the Primary Judgment were directed substantially to it.
I do not accept the applicant’s characterisation of the outcome as two successes to one. Costs do not turn on counting prayers or components of a motion, as though each carried equal weight. The relevant question is the event and the work reasonably undertaken in relation to it.
The Adjournment Application does not constitute a substantive success against the defendant for costs purposes. The application sought the vacation of hearing dates and thereby sought an indulgence from the Court. Supporting evidence was not initially served. The applicant’s affidavit dated 2 June 2026 was only provided to the defendant’s solicitor on the afternoon of 5 June 2026. When the matter next came before the court on 26 June 2026, the defendant did not oppose the application, and the hearing dates were vacated by consent.
No contested hearing was required, and no finding was made that the defendant had acted unreasonably. If the costs of that component were considered separately, the appropriate order would be no order as to costs. In practical terms, however, the evidence establishes that the costs attributable to that component were likely to be minimal.
I have considered the applicant’s supplementary submissions and the material at Annexure G to his affidavit of 20 July 2026. I accept that the email of 1 June 2026 was sent to Mr Sadek and attached documents described as notices to produce dated 29 May 2026 and 31 August 2022. To that extent, the respondents’ submission that no such document was ever received should not be understood as a finding that no document bearing the date 29 May 2026 was transmitted to the defendant’s solicitor.
Nonetheless, that factual clarification does not establish that the applicant succeeded on the NTP Application. The Motion sought compliance with a notice to produce dated 29 May 2026. On 31 July 2026, the applicant clarified that the notice on which he sought to rely was the notice to produce dated 31 August 2022, issued in different proceedings. Upon that clarification, the defendant agreed to produce responsive documents within 14 days. The issue was thereby resolved without a contested hearing or determination.
There was no finding that the defendant had failed to comply with a notice to produce issued in these proceedings, nor any adjudication that the applicant was entitled to the relief claimed in the Motion. The email proves transmission of attachments and does not, without more, prove breach of an enforceable obligation or substantive success on the Motion.
The applicant refers to later correspondence in which Mr Sadek is said to contend that the notice is spent. That subsequent dispute cannot retrospectively alter the basis upon which the Court was informed, and recorded at PJ [59], that the NTP Application had been resolved. If a live controversy has since arisen, it may be addressed by an appropriate application supported by evidence. The applicant expressly disavows any attempt to reopen the substantive determination in these costs submissions.
If the NTP Application were treated separately, I would make no order as to its costs. It was not determined on the merits, there is no occasion to conduct a hypothetical trial, and neither party incurred material costs in a contested hearing of it.
The remaining question is whether the absence of a costs order on the Adjournment Application and the NTP Application should produce a percentage reduction in the defendant’s costs of the Motion.
In my view it should not. Neither component occupied a significant part of the hearing or produced significant evidence, submissions or costs. The only contested substantive event was the dismissal of the Restraint Application. The principles in Bostik favour a single order reflecting the event rather than an artificial allocation which would add further complexity to any assessment.
The defendant should therefore have all of her costs of, and incidental to, the Motion on the ordinary basis, as agreed or assessed. In contrast to the Sadek Parties, she remains a party to the substantive proceedings. I see no reason to depart from r 42.7(2) of the UCPR by ordering that her costs be payable forthwith.
For the reasons set out above, the Court makes the following orders:
The plaintiff pay Wassim Sadek’s and Sadek Lawyers’ costs of, and incidental to, their participation as respondents to the further amended notice of motion dated 26 June 2026 on the ordinary basis, as agreed or assessed, such costs payable forthwith.
The plaintiff pay the defendant’s costs of, and incidental to, the further amended notice of motion dated 26 June 2026 on the ordinary basis, as agreed or assessed.
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correction to typographical error in [23]
Di Liristi
Yosef (No 3)