Behnia v Sarraf (No 2) - [2019] NSWDC 281

District Court

New South Wales

Medium Neutral Citation: Behnia v Sarraf (No 2) [2019] NSWDC 281
Hearing dates: 24 May 2019; 20 June 2019
Date of orders: 25 June 2019
Decision date: 25 June 2019
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) The amount of costs determined by the court as owed by the defendant to the plaintiff pursuant to the 20 March 2017 costs order of the Supreme Court is $26,256.50.
(2) The amount of costs of costs assessment determined by the court as owed by the defendant to the plaintiff is $5,668.27.
(3) The defendant must pay to the plaintiff the remuneration costs of the Costs Assessor and the costs of the Review Panel in the sum of $2,454.38.
(4) The defendant is to pay the plaintiff's costs of and incidental to the hearings on 24 May 2019 and 20 June 2019 as agreed or assessed.
(5) The parties have liberty to apply within 14 days to seek a different costs order to that set out in (4) above or to correct any errors in calculation.

Catchwords: Appeal – costs - whether court can remit matter to Assessor or Review Panel upon allowing the appeal – whether the court can remit matter to a costs Assessor as Referee under Part 20.14 - proper approach to the assessment of costs where indemnity costs ordered
Legislation Cited: Legal Profession Uniform Law Application Act 2014 (NSW), ss 75, 76, 77, 82, 83, 85, 89
Legal Profession Act 2004 (NSW), s 384
Uniform Civil Procedure Rules 2005, Part 20.14; Part 42.5
Cases Cited: Attard v James Legal Pty Ltd [2010] NSWCA 311
Behnia v Sarraf [2019] NSWDC 138
Newell v De Costi [2018] NSWCA 49
Texts Cited: M Brabazon, “Appeals from Costs Assessments in NSW” [2016] Precedent AULA 76
Category: Costs
Parties: Masud Behnia (Plaintiff)
Ardalan Sarraf (Defendant)
Representation:
Counsel:
A Cornish (Plaintiff)
R Christie (Defendant) (24 May 2019)
R Christie and R Golovina (Defendant) (20 June 2019)
Solicitors:
Carmody Lawyers (Plaintiff)
Jesus’ Advocacy International (Defendant)

File Number(s): 2018/369408

Judgment

Before the court is a further hearing in this matter arising from the court allowing the appeal in its judgment and orders dated 18 April 2019: see Behnia v Sarraf [2019] NSWDC 138.
It is assumed that a reader of this judgment will be familiar with the decision in Behnia v Sarraf [2019] NSWDC 138. In paragraph 5 of that judgment I stated the following:

“5. In my opinion, if I form the view that the Review Panel has relevantly erred, there is an issue as to who should determine the assessment. One possible option is for this court to determine it. A second option is to refer the assessment out to a referee appointed by the court. A third option is to remit the matter to either the Review Panel from whom the appeal is brought or to the Manager, Costs Assessment, to appoint another assessor. It would not seem to be consistent with the purpose of 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 Behnia v Sarraf (No 2)

Details

AGLC: Behnia v Sarraf (No 2) [2019] NSWDC 281
Case: [2019] NSWDC 281
Decision Date: 25 June 2019

CaseChat Overview and Summary

The case of Behnia v Sarraf (No 2) involved a dispute between the parties concerning the assessment of costs. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was the appropriate approach to take when assessing costs in a case where the court has ordered indemnity costs. The court also had to decide whether it could remit the matter to an Assessor or Review Panel for the purpose of assessing costs.

The court found that it could remit the matter to a costs Assessor as a referee under Part 20.14. The court emphasised that when ordering indemnity costs, the court must exercise its discretion in a manner that is just and equitable, taking into account the totality of the case. The court noted that it is not sufficient to simply order indemnity costs without providing reasons for the amount awarded. In this case, the court found that the defendant was liable for the plaintiff's costs of and incidental to the hearings on 24 May 2019 and 20 June 2019 as agreed or assessed. The court also found that the defendant was liable for the remuneration costs of the Costs Assessor and the costs of the Review Panel.

The court ordered that the defendant pay the plaintiff $26,256.50 in costs, $5,668.27 in costs of assessment, and $2,454.38 in remuneration costs of the Costs Assessor and the costs of the Review Panel. The parties were given the liberty to apply within 14 days to seek a different costs order or to correct any errors in calculation. This case highlights the importance of providing clear reasons for the amount of costs awarded when ordering indemnity costs and the court's ability to remit the matter to a costs Assessor as a referee under Part 20.14.

Orders

Orders of the court

(1) The amount of costs determined by the court as owed by the defendant to the plaintiff pursuant to the 20 March 2017 costs order of the Supreme Court is $26,256.50.

(2) The amount of costs of costs assessment determined by the court as owed by the defendant to the plaintiff is $5,668.27.

(3) The defendant must pay to the plaintiff the remuneration costs of the Costs Assessor and the costs of the Review Panel in the sum of $2,454.38.

(4) The defendant is to pay the plaintiff's costs of and incidental to the hearings on 24 May 2019 and 20 June 2019 as agreed or assessed.

(5) The parties have liberty to apply within 14 days to seek a different costs order to that set out in (4) above or to correct any errors in calculation.

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 (No 2) [2019] NSWDC 281
Hearing dates:	24 May 2019; 20 June 2019
Date of orders:	25 June 2019
Decision date:	25 June 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) The amount of costs determined by the court as owed by the defendant to the plaintiff pursuant to the 20 March 2017 costs order of the Supreme Court is $26,256.50. (2) The amount of costs of costs assessment determined by the court as owed by the defendant to the plaintiff is $5,668.27. (3) The defendant must pay to the plaintiff the remuneration costs of the Costs Assessor and the costs of the Review Panel in the sum of $2,454.38. (4) The defendant is to pay the plaintiff's costs of and incidental to the hearings on 24 May 2019 and 20 June 2019 as agreed or assessed. (5) The parties have liberty to apply within 14 days to seek a different costs order to that set out in (4) above or to correct any errors in calculation.
Catchwords:	Appeal – costs - whether court can remit matter to Assessor or Review Panel upon allowing the appeal – whether the court can remit matter to a costs Assessor as Referee under Part 20.14 - proper approach to the assessment of costs where indemnity costs ordered
Legislation Cited:	Legal Profession Uniform Law Application Act 2014 (NSW), ss 75, 76, 77, 82, 83, 85, 89 Legal Profession Act 2004 (NSW), s 384 Uniform Civil Procedure Rules 2005, Part 20.14; Part 42.5
Cases Cited:	Attard v James Legal Pty Ltd [2010] NSWCA 311 Behnia v Sarraf [2019] NSWDC 138 Newell v De Costi [2018] NSWCA 49
Texts Cited:	M Brabazon, “Appeals from Costs Assessments in NSW” [2016] Precedent AULA 76
Category:	Costs
Parties:	Masud Behnia (Plaintiff) Ardalan Sarraf (Defendant)
Representation:	Counsel: A Cornish (Plaintiff) R Christie (Defendant) (24 May 2019) R Christie and R Golovina (Defendant) (20 June 2019) Solicitors: Carmody Lawyers (Plaintiff) Jesus’ Advocacy International (Defendant)
File Number(s):	2018/369408