Barakat v Estate of the late Stavre Bazdarov

[2011] NSWCA 233

Court of Appeal

New South Wales

Case Title:

Barakat v Estate of the late Stavre Bazdarov

Medium Neutral Citation:

[2011] NSWCA 233

Hearing Date(s):

8 August 2011

Decision Date:

08 August 2011

Jurisdiction:

Before:

Basten JA

Decision:

(1) On the undertaking of the appellants to prosecute the appeal expeditiously in this Court, stay the judgment given in the District Court dated 24 June 2011.
(2) Order that the costs of the motion for the stay be costs in the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - civil - stay pending appeal - whether grounds arguable - whether prejudice to respondent if stay granted - likelihood of recovery if judgment overturned on appeal 

Legislation Cited:

Cases Cited:

Texts Cited:

Category:

Procedural and other rulings

Parties:

Tony Barakat, Russell Walter Keddie and Scott John Roulstone Trading as Keddies Lawyers - Appellants

Estate of the Late Stavre Bazdarov - Respondent

Representation

- Counsel:

Counsel:

Mr J Morris - Appellants

Mr G O'Mahoney - Respondent

- Solicitors:

Solicitors:

Verekers Lawyers - Appellants

Firths The Compensation Lawyers - Respondent

File number(s):

CA 2011/240564

Decision Under Appeal

- Court / Tribunal:

- Before:

Ashford DCJ

- Date of Decision:

24 June 2011

- Citation:

- Court File Number(s)

DC 2011/15729

Publication Restriction:

Judgment

1. BASTEN JA : The appellants, being a firm of solicitors trading as Keddies Lawyers, seek a stay of a judgment in the District Court, against which they have appealed. The judgment, including interest, is in an amount of approximately $240,000, being the amount by which Ashford DCJ held that the appellants had overcharged their then client, Mr Stavre Bazdarov, in acting for him with respect to a medical negligence claim.

1. Approximately a fortnight after judgment was handed down in the District Court, Mr Bazdarov died. The appeal is now brought against his estate. Although no point was taken in respect of the present application, it appears that steps may need to be taken to regularise the form of the appeal proceedings.

1. In support of their application for a stay, the appellants rely upon a solicitor's affidavit noting that Mr Bazdarov's widow, who has apparently given instructions on behalf of the respondent, is apparently without assets and they fear that, if payment is required pursuant to the judgment, and the appeal is ultimately successful, it may be difficult or impracticable to obtain repayment of the funds.

1. The respondent does not suggest that the estate has significant assets, nor that there is not a significant risk that the funds will be dissipated pending the hearing of the appeal. It might, of course, be possible to arrange for the judgment to be paid on conditions designed to secure repayment, but there appears to be no purpose in such an exercise. The respondent does not suggest that the appellants will be unable to make payment of the debt, should the appeal prove unsuccessful.

1. The resistance to the stay was based on the proposition that the judgment below was unimpeachable. Issue was taken with the two main matters of concern raised by the appellants as a basis for appeal. In brief, the issues raised on the appeal were twofold. The first was whether her Honour was correct in concluding that there had been a failure to provide an estimate of costs in advance and, if so, whether that rendered the contract unenforceable. Secondly, a challenge was raised to the assessment by the Court as to what amount was payable for legal services, on the basis that the contract was not, in its terms, enforceable. The appellants contend that the exercise undertaken was not appropriate, given that payment had been made (by deduction from the settlement amount) several years before the proceedings were commenced and that no assessment of the costs had been sought in the 12 month period after payment. Related to the last point is a challenge to the admission of expert evidence with respect to the assessment of costs payable.

1. The respondent contended that the challenge with respect to the unenforceability of the contract was untenable and that, if the costs were to be assessed on a fair and reasonable basis, there could be no challenge to the admissibility of the report upon which her Honour acted.

1. There is one other aspect that needs to be addressed. It is that the trial judge recorded "concessions" made in respect of the payments said to be due under the contract. These, together with a payment which appeared to have no ready source in the solicitors' "fee ledger", amounted to some $20,000. On one view, such an amount might have been payable as being not in dispute. However, the appellants contended that the calculation of costs in accordance with the agreement, was some $30,000 higher than the amount actually taken, by way of deduction from the settlement fund. Accordingly, they contended that the concession did not give rise to a balance payable to the respondent in any event. Noting the calculation set out by the primary judge at [16], that argument appears to be correct. Accordingly there is no ready form of compromise based on payment of this smaller amount.

1. Without seeking to assess the prospects of success, the appellants' arguments cannot be said to be hopeless. There is no risk that the appellants will not be able to pay the outstanding judgment in the event that the appeal is unsuccessful. There are, on the other hand, very real concerns that at least part of the proceeds of the judgment, if paid to the respondent, will not be recoverable if the appellants are successful in overturning the judgment.

1. In these circumstances, the appellants should have a stay of the judgment in the District Court, upon an undertaking that they will pursue the appeal expeditiously in this Court.

1. As noted above, it is not clear that the appeal proceedings have been properly constituted and it is therefore doubtful whether there is any person who is able to consent to the stay. Further, while by no means unarguable, the strength of the appeal is also not readily apparent. In the circumstances, it is appropriate that the costs of the motion be costs in the appeal.

1. Upon the appellants giving the undertaking referred to by their counsel, I make the following orders:

(1) On the undertaking of the appellants to prosecute the appeal expeditiously in this Court, stay the judgment given in the District Court dated 24 June 2011.

(2) Order that the costs of the motion for the stay be costs in the appeal.

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