Behnia v Sarraf - [2019] NSWDC 138

District Court

New South Wales

Medium Neutral Citation: Behnia v Sarraf [2019] NSWDC 138
Hearing dates: 9 April 2019
Date of orders: 18 April 2019
Decision date: 18 April 2019
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) The time for the plaintiff to file the Summons in the proceedings is extended up to and including 30 November 2018.
(2) The appeal is allowed.
(3) The determinations of Assessor T Stern dated 23 April 2018 are set aside.
(4) The determinations of the Review Panel dated 3 October 2018 are set aside.
(5) The defendant is to pay the plaintiff's costs of this appeal as agreed or assessed.
(6) Liberty to the parties to seek a different costs order to that set out in paragraph (5) above within 21 days.

Catchwords: Appeal – costs – whether general order disposing of proceedings vacates or replaces prior interlocutory orders made as to costs – whether error of law by costs assessor and Review Panel
Legislation Cited: Legal Profession Uniform Law Application Act 2014 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited: El-Wasfi v State of New South Wales (No 2) [2018] NSWCA 27
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40
Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41
Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170
Category: Costs
Parties: Masud Behnia (Plaintiff)
Ardalan Sarraf (Defendant)
Representation:
Counsel:
A Cornish (Plaintiff)
R Golovina (Defendant)
Solicitors:
Carmody Lawyers (Plaintiff)
Jesus’ Advocacy International (Defendant)

File Number(s): 2018/369408

Judgment

In these proceedings, the plaintiff, Professor Masud Behnia, seeks leave to appeal from the determination of a Costs Review Panel dated 3 October 2018 upholding an earlier costs assessment by an assessor. The central issue in the proceedings is whether a final costs order in underlying Supreme Court proceedings had the effect of replacing or vacating a prior order made in favour of the plaintiff for costs in an interlocutory hearing in those Supreme Court proceedings. Both the costs assessor and the Review Panel held that it did. The plaintiff submits that it did not.
The plaintiff commenced this appeal by a Summons filed on 30 November 2018. That Summons was filed more than 28 days after the “material date” being the date on which notice of the decision of the Review Panel was given by or on behalf of the persons who made the decision, to the plaintiff, the person who wishes to appeal. Under Part 50.3(1) of the Uniform Civil Procedure Rules 2005, a Summons commencing an appeal must be filed within 28 days after the material date or within such further time as the “higher court” may allow: see Part 50.2 definitions of “higher court” and “material date” and Part 50.3(1). The District Court is the “higher court” for the purposes of the rule.
Under s 89(1) of the Legal Profession Uniform Law Application Act 2014 (NSW) (“

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 Behnia v Sarraf

Details

AGLC: Behnia v Sarraf [2019] NSWDC 138
Case: [2019] NSWDC 138
Decision Date: 18 April 2019

CaseChat Overview and Summary

In the matter of Behnia v Sarraf, the Federal Court of Australia was tasked with reviewing decisions made regarding costs in proceedings between the parties. The initial dispute involved claims brought by Behnia against Sarraf, leading to various interlocutory orders concerning costs. Subsequent to an assessment by a costs assessor and a review by a panel, the plaintiff sought further review of the costs determinations.

The court had to address whether the general order disposing of the proceedings vacated or replaced prior interlocutory orders concerning costs. Additionally, it needed to determine whether there was an error of law in the decisions of the costs assessor and the Review Panel. The plaintiff argued that the final order did not properly dispose of the costs issues and that the Review Panel had erred in its assessment.

The court found that the general order disposing of the proceedings did not automatically vacate or replace the prior interlocutory orders regarding costs. It further held that there was an error of law in the decisions of both the costs assessor and the Review Panel. Consequently, the court set aside the determinations made by these bodies and ordered that the defendant pay the plaintiff’s costs of the appeal as agreed or assessed. The parties were granted liberty to seek a different costs order within 21 days.

Orders

Orders of the court

(1) The time for the plaintiff to file the Summons in the proceedings is extended up to and including 30 November 2018.

(2) The appeal is allowed.

(3) The determinations of Assessor T Stern dated 23 April 2018 are set aside.

(4) The determinations of the Review Panel dated 3 October 2018 are set aside.

(5) The defendant is to pay the plaintiff's costs of this appeal as agreed or assessed.

(6) Liberty to the parties to seek a different costs order to that set out in paragraph (5) above within 21 days.

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:	Behnia v Sarraf [2019] NSWDC 138
Hearing dates:	9 April 2019
Date of orders:	18 April 2019
Decision date:	18 April 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) The time for the plaintiff to file the Summons in the proceedings is extended up to and including 30 November 2018. (2) The appeal is allowed. (3) The determinations of Assessor T Stern dated 23 April 2018 are set aside. (4) The determinations of the Review Panel dated 3 October 2018 are set aside. (5) The defendant is to pay the plaintiff's costs of this appeal as agreed or assessed. (6) Liberty to the parties to seek a different costs order to that set out in paragraph (5) above within 21 days.
Catchwords:	Appeal – costs – whether general order disposing of proceedings vacates or replaces prior interlocutory orders made as to costs – whether error of law by costs assessor and Review Panel
Legislation Cited:	Legal Profession Uniform Law Application Act 2014 (NSW) Uniform Civil Procedure Rules 2005
Cases Cited:	El-Wasfi v State of New South Wales (No 2) [2018] NSWCA 27 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170
Category:	Costs
Parties:	Masud Behnia (Plaintiff) Ardalan Sarraf (Defendant)
Representation:	Counsel: A Cornish (Plaintiff) R Golovina (Defendant) Solicitors: Carmody Lawyers (Plaintiff) Jesus’ Advocacy International (Defendant)
File Number(s):	2018/369408