Commonwealth Bank of Australia v Khoury; Khoury v Commonwealth Bank of Australia [2014] NSWSC 691 (20 June 2014)

Last Updated: 23 June 2014

Supreme Court New South Wales

Case Title:	Commonwealth Bank of Australia v Khoury; Khoury v Commonwealth Bank of Australia
Medium Neutral Citation:	[2014] NSWSC 691
Hearing Date(s):	20 June 2014
Decision Date:	20 June 2014
Jurisdiction:	Common Law
Before:	Davies J
Decision:	The costs of directions hearings of 2 May 2014, 16 May 2014 and 20 June 2014 to be borne by the Khourys
Catchwords:	COSTS - failure by mortgagors to sign confidentiality document regarding certain discovered documents - failure by mortgagors to decide if they wished to apply to adduce expert evidence - wasted directions hearings
Category:	Costs
Parties:	Comonwealth Bank of Australia v Khoury: Commonwealth Bank of Australia trading as Bankwest (First Plaintiff) Robert Moodie in his capacity as receiver and manager of the property (Second Plaintiff) Melissa Lau in her capacity as receiver and manager of the property (Third Plaintiff) Elie Elias Khoury (First Defendant) Norma Khoury (also known as Norma Therese Khoury) (Second Defendant) Khoury v Commonwealth Bank of Australia: Elie Elias Khoury (First Plaintiff) Norma Khoury (also known as Norma Therese Khoury) (Second Plaintiff) Commonwealth Bank of Australia trading as Bankwest (First Defendant) Robert Moodie in his capacity as receiver and manager of the property (Second Defendant) Melissa Lau in her capacity as receiver and manager of the property (Third Defendant)
Representation
- Counsel:	Counsel: B Spain (Commonwealth Bank of Australia) No Appearances (Elie Elias Khoury & Norma Khoury (also known as Norma Therese Khoury))
- Solicitors:	Solicitors: Gadens Lawyers (Commonwealth Bank of Australia) Alexander Lee & Associates (Elie Elias Khoury & Norma Khoury (also known as Norma Therese Khoury))
File Number(s):	2013/107636 & 2013/107019

JUDGMENT

1. The Commonwealth Bank of Australia applies for costs of the directions hearings on 2 May 2014, 16 May 2014 and 20 June 2014 on the basis that they have all been occasioned by delays on the part of Elie Elias Khoury and Norma Khoury ("the Khourys").

2. On 8 April 2014 I gave the parties leave to approach the Listing Manager to obtain a hearing date for the matter. Mr Loxton of counsel raised with me, on that occasion, the possibility that the Khourys might wish to apply to adduce expert evidence in the matter. For that purpose I stood the proceedings over to 2 May 2014.

3. In the meantime there had been issues between the parties concerning discovery and the signing by the Khourys of a confidentiality deed to obtain particular documents from the Bank. The confidentiality deed was forwarded to the Khourys' solicitors on 24 April 2014. It was not, in fact, signed until shortly after the directions hearing on 16 May 2014.

4. Mr Loxton indicated that he could not make a decision about applying to adduce expert evidence until he had seen all of the discovery documents from the Bank. Accordingly it was incumbent on the Khourys to have the confidentiality deed signed as soon as possible. The failure of the Khourys to sign the confidentiality deed soon after it was provided appears to me to have brought about the position where the directions hearing on 2 May, 16 May and today have been necessary.

5. Further, the proceedings were stood over to today to enable a Notice of Motion to be filed by the Khourys, if they wished to do so, to seek to adduce expert evidence. There is no appearance for the Khourys and no Motion has been filed.

6. In the ordinary course of events, the Khourys ought to have been in a position by 2 May to indicate whether or not expert evidence was to be relied upon. They were not in the position to do that either on 2 May or 16 May because there had been a failure by them to execute the confidentiality deed expeditiously.

7. The proceedings were stood over to today especially to enable the Khourys to make application for expert evidence. They have not done so and they have not appeared.

8. In those circumstances the Khourys should pay the costs of the directions hearings of 2 May, 16 May and today.

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