Bechara v Cross - [2014] NSWCA 175

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bechara v Cross [2014] NSWCA 175
Hearing dates: 4 April 2014
Decision date: 03 June 2014
Before: Macfarlan JA at [1];
Emmett JA at [20];
Sackville AJA at [22]
Decision:
(1) Grant leave to Ms Bechara to appeal against costs order (1) made by Levy DCJ on 31 May 2013.
(2) Direct Ms Bechara to file a Notice of Appeal in the form of the draft supplied by her to the Court within 14 days of today's date.
(3) Allow the appeal.
(4) Set aside costs order (1) made on 31 May 2013.
(5) In lieu thereof, order that the Defendants pay on the party/party basis Ms Bechara's costs incurred by her up until 19 October 2012, save for those the subject of costs orders made on 26 March 2012, 20 July 2012 and 7 March 2013 which costs orders are to remain operative.
(6) Order the Defendants to pay Ms Bechara's costs of the application for leave to appeal and appeal.
(7) Grant the Defendants a certificate under the Suitors' Fund Act 1951, if qualified.
[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: PRACTICE AND PROCEDURE - costs - applicant solicitor brought proceedings against former clients for recovery of professional fees - whether primary judge erred in ordering that each party pay their own costs incurred up to date of offer of compromise - no good reason to depart from general rule that costs follow the event - not incumbent upon applicant to refute allegations against her by respondents that were withdrawn - no issue of principle
Legislation Cited: Bankruptcy Act 1966 (Cth), s 58(3)
Suitors' Fund Act 1951 (NSW), s 6C(1)(c)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Category: Procedural and other rulings
Parties: Maria Bechara trading as Bechara and Company (Applicant)
Rosabelle Cross (First Respondent)
Gabriel Cross (Second Respondent)
Representation: Counsel:
J Merkel (Applicant)
S Mullette (Trustee in bankruptcy of Respondents)
No appearance by or for Respondents
Solicitors:
Bechara and Company (Applicant)
Matthews Folbigg Pty Ltd (Trustee in bankruptcy of Respondents)

File Number(s): CA 2013/195858
Decision under appeal

Jurisdiction:

9101

Before:

Levy SC DCJ

File Number(s):

DC 2011/334416

Judgment

MACFARLAN JA: This is an application by Ms Maria Bechara, solicitor, for leave to appeal against costs orders made by Levy DCJ on 7 February and 31 May 2013 in proceedings brought by Ms Bechara in the District Court against two former clients (the "Defendants") for the recovery of professional fees claimed to be due by them. The application was heard concurrently with the appeal that would lie if leave were granted. The…

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 Bechara v Cross

Details

AGLC: Bechara v Cross [2014] NSWCA 175
Case: [2014] NSWCA 175
Decision Date: 03 June 2014

CaseChat Overview and Summary

In *Bechara v Cross*, the applicant, Ms Bechara, a solicitor, appealed to the Court of Appeal of New South Wales against a costs order made by the District Court. The dispute concerned the recovery of professional fees owed by Ms Bechara's former clients, the defendants.

The primary legal issue before the Court of Appeal was whether the primary judge erred in ordering that each party bear their own costs incurred up to the date of an offer of compromise. This involved considering whether there was a "good reason" to depart from the general rule that costs follow the event.

The Court of Appeal reasoned that there was no good reason to depart from the general rule. It held that it was not incumbent upon Ms Bechara to refute allegations made against her by the defendants that were subsequently withdrawn. The court found no issue of principle that would justify the primary judge's order. Consequently, the appeal was allowed, the previous costs order was set aside, and orders were made for the defendants to pay Ms Bechara's costs up to a specified date, with certain exceptions for prior costs orders. The defendants were also granted a certificate under the Suitors' Fund Act 1951, if qualified.

Orders

Orders of the court

(1) Grant leave to Ms Bechara to appeal against costs order (1) made by Levy DCJ on 31 May 2013.

(2) Direct Ms Bechara to file a Notice of Appeal in the form of the draft supplied by her to the Court within 14 days of today's date.

(3) Allow the appeal.

(4) Set aside costs order (1) made on 31 May 2013.

(5) In lieu thereof, order that the Defendants pay on the party/party basis Ms Bechara's costs incurred by her up until 19 October 2012, save for those the subject of costs orders made on 26 March 2012, 20 July 2012 and 7 March 2013 which costs orders are to remain operative.

(6) Order the Defendants to pay Ms Bechara's costs of the application for leave to appeal and appeal.

(7) Grant the Defendants a certificate under the Suitors' Fund Act 1951, if qualified.

[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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Bechara v Cross [2014] NSWCA 175
Hearing dates:	4 April 2014
Decision date:	03 June 2014
Before:	Macfarlan JA at [1]; Emmett JA at [20]; Sackville AJA at [22]
Decision:	(1) Grant leave to Ms Bechara to appeal against costs order (1) made by Levy DCJ on 31 May 2013. (2) Direct Ms Bechara to file a Notice of Appeal in the form of the draft supplied by her to the Court within 14 days of today's date. (3) Allow the appeal. (4) Set aside costs order (1) made on 31 May 2013. (5) In lieu thereof, order that the Defendants pay on the party/party basis Ms Bechara's costs incurred by her up until 19 October 2012, save for those the subject of costs orders made on 26 March 2012, 20 July 2012 and 7 March 2013 which costs orders are to remain operative. (6) Order the Defendants to pay Ms Bechara's costs of the application for leave to appeal and appeal. (7) Grant the Defendants a certificate under the Suitors' Fund Act 1951, if qualified. [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:	PRACTICE AND PROCEDURE - costs - applicant solicitor brought proceedings against former clients for recovery of professional fees - whether primary judge erred in ordering that each party pay their own costs incurred up to date of offer of compromise - no good reason to depart from general rule that costs follow the event - not incumbent upon applicant to refute allegations against her by respondents that were withdrawn - no issue of principle
Legislation Cited:	Bankruptcy Act 1966 (Cth), s 58(3) Suitors' Fund Act 1951 (NSW), s 6C(1)(c) Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Category:	Procedural and other rulings
Parties:	Maria Bechara trading as Bechara and Company (Applicant) Rosabelle Cross (First Respondent) Gabriel Cross (Second Respondent)
Representation:	Counsel: J Merkel (Applicant) S Mullette (Trustee in bankruptcy of Respondents) No appearance by or for Respondents Solicitors: Bechara and Company (Applicant) Matthews Folbigg Pty Ltd (Trustee in bankruptcy of Respondents)
File Number(s):	CA 2013/195858
Decision under appeal	Jurisdiction: 9101 Before: Levy SC DCJ File Number(s): DC 2011/334416