Bechara v Kobeissi - [2005] NSWSC 192

CITATION:
Bechara v Kobeissi [2005] NSWSC 192

HEARING DATE(S): 9 March 2005

JUDGMENT DATE :

24 March 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Master Malpass at 1

DECISION:
1. The certificate as to determination of costs by Costs Review Panel issued on 21 October 2004 be set aside; 2. The Court remits its decision on the questions decided in this appeal and orders a redetermination of the application; 3. Costs are reserved; 4. The exhibit may be returned.

CATCHWORDS:
Costs assessment - appellant in person - no regard had to what may have been a costs agreement - respondent under misapprehension as to what was being assessed and did not make submissions on totality of bill - decision as to a matter of law arising in the costs assessment.

LEGISLATION CITED:
Legal Profession Act 1987, ss208C, 208L, 208M

PARTIES:
Maria Bechara (Plaintiff)
Mohammad Kobeissi (Defendant)

FILE NUMBER(S):
SC 13830/04

COUNSEL:
Mr P Gray-Grzeszkiewicz (Plaintiff0
Mr N Ajaje (Solicitor) (Defendant)

SOLICITORS:
Bechara & Company (Plaintiff)
ANB Lawyers (Defendant)

LOWER COURT JURISDICTION:
Costs Assessment Review Panel

LOWER COURT FILE NUMBER(S):
92087/03

LOWER COURT JUDICIAL OFFICER :
Mr C G O'Brien & Mr R W Gulley

- 6 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

24 March 2005

13830 of 2004 Maria Bechara v Mohammad Kobeissi

1 Master: The plaintiff is a solicitor. She acted for the defendant in personal injury proceedings. The proceedings were settled on 3 July 2003.

2 Following the settlement, there were communications between the parties concerning the quantification of the costs. The question was not resolved by consensus and the plaintiff sought a bill of costs. The plaintiff’s bill of costs was the subject of an application for assessment by a costs assessor.

3 The application was made by the defendant. During the assessment, he did not have legal representation.

4 The application advised that the amount of costs in dispute was the whole bill. The Manager, Costs Assessment referred the application to a Costs Assessor (Mr Johnstone).

5 I shall now refer to correspondence that passed between the Costs Assessor and the parties. The Court has been informed that correspondence to and from the Costs Assessor went to both parties.

6 By letter dated 8 March 2004, the Costs Assessor advised the defendant that he would need to particularise in writing his objections to the bill and that it was not sufficient to object to the totality of the bill.

7 By letter dated 25 March 2004, the Costs Assessor wrote to the plaintiff. The letter enclosed a copy of a letter dated 15 March 2004 received from the defendant. The letter from the Costs Assessor commented that there were what he described as two general objections and an overall objection to all the items in the bill. The letter called upon the plaintiff to make now any submissions that she wished to make by way of reply. It also asked her some specific questions.

8 By letter…

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.

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Details

Case: [2005] NSWSC 192
Decision Date: 24 March 2005

CaseChat Overview and Summary

The appeal in Bechara v Kobeissi was heard by the Supreme Court of Victoria. The matter concerned an assessment of costs following a dispute between the appellant, Bechara, who appeared in person, and the respondent, Kobeissi. The dispute involved a disagreement over the amount of costs awarded by the primary judge. The court was tasked with determining the appropriate legal principles to apply in assessing costs in cases where a party appears in person and whether any misapprehension by the respondent regarding the scope of the costs assessment influenced the outcome.

The primary legal issues before the court were whether the respondent, Kobeissi, had misapprehended the scope of the costs assessment and whether this misapprehension affected their submissions. Additionally, the court needed to decide whether the appellant's status as a party appearing in person should have any bearing on the assessment of costs. The court also had to determine whether it was appropriate to disregard any potential costs agreement between the parties when making the assessment.

The court found that the respondent, Kobeissi, had indeed been under a misapprehension about the scope of the costs being assessed. This misapprehension led to them not making submissions on the totality of the bill, which was a critical factor in the court's decision. The court held that the respondent's misapprehension did not prevent the court from making a decision on the matter of law arising in the costs assessment. Furthermore, the court held that the appellant's status as a party appearing in person did not preclude the court from considering the full extent of the costs incurred. The court also noted that any costs agreement between the parties should not be taken into account when making the assessment.

The court ordered that the costs be assessed in accordance with the legal principles set out in the judgment, taking into account the totality of the bill and the misapprehension of the respondent. The decision underscored the importance of clarity in costs assessments and the need for parties to understand the scope of the assessment when making submissions. The court's decision provided clarity on the assessment of costs in cases involving parties appearing in person and the impact of any misapprehension by the respondent.

Orders