Bechara v Pogorzelska

[2015] NSWCA 374

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bechara v Pogorzelska [2015] NSWCA 374

Hearing dates:

25 November 2015

Decision date:

25 November 2015

Before:

Basten JA at [9];
Bergin CJ in Eq at [1]

Decision:

(1)   Refuse the applicant’s application for adjournment of the hearing.

 

(2)   Dismiss the summons filed on 24 September 2015 seeking leave to appeal against various interlocutory orders made in the Equity Division.

 

(3)   Dismiss the applicant’s notice of motion dated 24 September 2015.

 (4)   Order that the applicant pay the costs of the first and third respondents and the second respondent to be assessed on an indemnity basis

Catchwords:

APPEAL – application for leave to appeal from a number of interlocutory orders made against solicitor – non-attendance by applicant at hearing – proceedings dismissed

  COSTS – where applicant sought adjournment of hearing of application for leave to appeal on the day of hearing – proceedings dismissed – whether indemnity costs should be awarded

Category:

Procedural and other rulings

Parties:

Maria Bechara t/as Bechara and Company (Applicant)
Nina Pogorzelska (First Respondent)
Anne Kazas-Rogaris (Second Respondent)
AAP Investments (Aust) Pty Ltd (Third Respondent)

Representation:

Counsel:
Mr D Allen (Applicant)
Mr J E Armfield (First and Third Respondents)
Mr S Laface (Second Respondent)

  Solicitors:
Bechara and Company Lawyers (Applicant)
Lane & O’Rourke (First and Third Respondents)
AJL Legal (Second Respondent)

File Number(s):

2015/279387

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Date of Decision:

30 April 2015; 26 June 2015; 11 August 2015; 17 September 2015; 18 September 2015

Before:

Lindsay J

File Number(s):

2014/52447

Judgment

1. BERGIN CJ in Eq: This is an application for costs consequent upon the dismissal of a Notice of Motion and a Summons seeking leave to appeal filed on 24 September 2015. The matter has been set down for hearing today and previously the Registrar of the Court of Appeal indicated to the applicant that if there was an intention to seek to have the matter adjourned then notice should be given to the Court.

2. Today, when the matter was called on, Mr D Allen, of counsel, appeared and indicated that the applicant was seeking an adjournment. He put no basis for the adjournment and indicated that he could not make any submissions in support of it. The adjournment was refused. Mr Allen also indicated that in those circumstances consequences would follow. Those consequences are, the dismissal of the Summons seeking leave to appeal and the Notice of Motion.

3. Mr Armfield and Mr Laface, appearing for the first and third respondents, and second respondent, respectively, seek costs of this application on an indemnity basis.

4. The first notice that was given to the Court that the matter would not proceed was when Mr Allen appeared today in what he described as a limited capacity and announced his intention to seek the adjournment and indicated that he understood the consequences if the adjournment was refused.

5. The parties were put to the expense, time and cost of preparing for this application. There was a need to respond to what was referred to as a summary of argument. The applicant failed to file any submissions. However the respondents anticipated from the Notice of Motion and the Summons seeking leave to appeal what might be addressed and put on their written submissions.

6. It was apparent that on the evening of 23 November 2015 one of the respondents received an email which attached to it what was described as a summary of the applicant’s argument. What was attached was a construct of a combination of the Summons and the Notice of Motion. There was no argument included in that email or document.

7. So far as the application for indemnity costs is concerned, Mr Allen submitted that the applicant should not be put in a worse position because the applicant has in fact saved time for the Court today and the other parties by not appearing in circumstances to argue the application. That, may I say with respect, seems to miss the point that all the costs, but for the 40 minutes or a little longer that might have been available for each party to put their arguments, have been incurred or expended.

8. It seems to me that the just and equitable outcome in the circumstances is that indemnity costs are warranted. My proposal is that the applicant should pay the respondents’ costs of this application on an indemnity basis.

9. BASTEN JA: I agree. Accordingly, the orders of the Court are:

1. Refuse the applicant’s application for adjournment of the hearing.

2. Dismiss the summons filed on 24 September 2015 seeking leave to appeal against various interlocutory orders made in the Equity Division.

3. Dismiss the applicant’s notice of motion dated 24 September 2015.

4. Order that the applicant pay the costs of the first and third respondents and the second respondent to be assessed on an indemnity basis.

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Decision last updated: 30 November 2015