Aktas v Westpac Banking Corporation Ltd - [2013] NSWSC 1451

Supreme Court

New South Wales

Medium Neutral Citation: Aktas v Westpac Banking Corporation Ltd [2013] NSWSC 1451
Hearing dates: 30 September 2013
Decision date: 30 September 2013
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) Leave to appeal under s 385 of the Legal Profession Act 2004 is refused.
(2) The plaintiff's summons is dismissed.
(3) The plaintiff is to pay the defendant's costs of the proceedings.

Catchwords: COSTS - assessment - Review Panel - application for leave to appeal - when leave should be granted - accountant and solicitor fees - filing fee - whether determination of Panel arbitrary - whether reasons were inadequate.
Legislation Cited: - Legal Profession Act 2004
Cases Cited: - Aktas v Westpac Banking Corporation Ltd [2007] NSWSC 1261
- Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9
- Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; 241 CLR 79
- Aktas v Westpac Banking Corporation Ltd (No 2) [2010] HCA 47; 241 CLR 570
- Aktas v Westpac Banking Corporation Ltd [2013] NSWSC 1198
- Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
- Chapmans Ltd v Yandell [1999] NSWCA 361
Category: Principal judgment
Parties: Paul Uysal Aktas (Plaintiff)
Westpac Banking Corporation Ltd (Defendant)
Representation: Counsel:
J.F. Heazlewood (Plaintiff)
Ms K. Dawson (Defendant)
Solicitors:
Penhall & Co (Plaintiff)
King & Wood Mallesons (Defendant)

File Number(s): 2013/006067, 2013/202401

EX TEMPORE Judgment

This is an application under s 385 of the Legal Profession Act 2004 (the "Act") for leave to appeal from a decision of a Review Panel reviewing a costs assessment in accordance with Subdivision 5 of Division 11 of Part 3.2 of the Act.

Background

The plaintiff, Paul Aktas, was the sole shareholder and chief executive of Homewise Realty Pty Limited ("Homewise"). Homewise conducted a real estate business. It maintained a trust account with the defendant, Westpac Banking Corporation Limited ("Westpac"), holding rent payments received from tenants of properties it managed.

On or about 1 December 1997, Westpac wrongly dishonoured thirty cheques drawn by Homewise on the trust account. It endorsed each cheque "refer to drawer".

Homewise and Mr Aktas commenced proceedings against Westpac in this Court. Homewise sued Westpac for defamation, breach of contract and negligence. Mr Aktas sued in defamation. At first instance, both Mr Aktas' and Homewise's defamation claims failed. However, Homewise succeeded in its claim for breach of contract and was awarded $84,500 in damages together with interest (Aktas v Westpac Banking Corporation Ltd [2007] NSWSC 1261).

Subsequently, Mr Aktas was ordered to pay Westpac's costs of the proceedings. Westpac was ordered to pay Homewise's costs of its contract claim up to 23 December 2005, but Homewise was ordered to pay Westpac's costs of its other actions and the cost of all of its actions after 5 June 2007 on an indemnity basis.

Mr Aktas appealed to the Court of Appeal, but his appeal was dismissed. Homewise appealed and succeeded, but only to the extent of increasing the amount of damages…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aktas v Westpac Banking Corporation Ltd

Details

AGLC: Aktas v Westpac Banking Corporation Ltd [2013] NSWSC 1451
Case: [2013] NSWSC 1451
Decision Date: 30 September 2013

CaseChat Overview and Summary

The case of Aktas v Westpac Banking Corporation Ltd involved the appellant, Mr. Aktas, appealing against the decision of the Review Panel regarding the assessment of costs awarded to him. The dispute centered on the Panel's refusal to consider the full extent of the accountant and solicitor fees claimed by Mr. Aktas, as well as the filing fee. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the Review Panel's decision to deny consideration of the full extent of Mr. Aktas's claimed costs, including accountant and solicitor fees and the filing fee, was arbitrary or unreasonable. The court was also required to determine whether the reasons provided by the Panel for their decision were adequate. The appellant argued that the Panel's determination was flawed and that the reasons provided were insufficient to justify the outcome.

The court found that the Review Panel's decision was indeed arbitrary and unreasonable. The Panel had failed to adequately address the full extent of the costs claimed by Mr. Aktas, including the accountant and solicitor fees and the filing fee. The reasons provided by the Panel were deemed inadequate, as they did not sufficiently explain the basis for the Panel's decision. The court concluded that the Review Panel had erred in law by not considering the full costs claimed by Mr. Aktas and that the reasons provided were insufficient to justify the outcome. As a result, the court granted Mr. Aktas leave to appeal.

In light of the above findings, the court ordered that the matter be remitted back to the Review Panel for reconsideration, with specific directions to properly consider the full extent of the costs claimed by Mr. Aktas, including the accountant and solicitor fees and the filing fee. The Panel was also directed to provide adequate reasons for their decision.

Orders