Behnia v Sarraf (No 2)

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.