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Benjamin & Khoury Pty Ltd v Rahme

Benjamin & Khoury Pty Ltd v Rahme

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Case Copied 14 June 2022 38 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Benjamin & Khoury Pty Ltd v Rahme [2022] NSWSC 766
Hearing dates: 31 May 2022
Date of orders: 14 June 2022
Decision date: 14 June 2022
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) In proceedings 2021/330107:
(a) On condition that the plaintiff pays into court the sum of $196,554 by 12 July 2022, stay the enforcement of the judgment until the determination of the appeal;
(b) Order that costs be costs in the appeal.
(2) In proceedings 2021/330110:
(a) On condition that the plaintiff pays into court the sum of $93,170 by 12 July 2022, stay the enforcement of the judgment until the determination of the appeal;
(b) Order that costs be cost in the appeal.

Catchwords:
JUDGMENTS AND ORDERS – stay of execution – where appeal lodged – judgments created by registration of certificate of costs assessor - whether “proceedings” constituted by registration – appeal against Review Panel determination - appeal by way of rehearing – whether Part 7 of the Legal Profession Uniform Law Application Act 2014 precluded reliance on ss 67 and 135 of the Civil Procedure Act - whether serious question to be tried at hearing of the appeal – where balance of convenience lies – stay granted on condition of partial payment into court of judgment sum

Legislation Cited:
Bankruptcy Act 1966 (Cth)
Civil Procedure Act 2005 (NSW) ss 67, 133, 135,
Corporations Act 2001 (Cth) s 459E
District Court Act 1973 (NSW) s 4
Legal Profession Act 1987 (NSW) ss 208H, 208J, 208KF
Legal Profession Act 2004 (NSW) s 352
Legal Profession Uniform Law Application Act 2014 No 16 (NSW) s 71, 73, 77, 88, 89, 90,
Legal Profession Regulation 2005 (NSW) s 352
Supreme Court Act 1970 (NSW) s 16
Uniform Civil Procedure Rules 2005 (NSW) r 20.14, 50.7

Cases Cited:
Akierman Holdings Pty Limited v Akerman (No 3); In the matter of Akierman Holdings Pty Limited (No 2) [2021] NSWSC 869
Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685
Ballard v Carlisle Attorneys Pty Ltd [2010] NSWSC 769
Behnia v Sarraf (No 2) [2019] NSWDC 281
Brierley v Anthony Charles Reeves T/as Kaplan Reeves & Co & Ors [2000] NSWSC 305
Currabubula & Paola v State Bank NSW; Currabubula v State Bank NSW [2000] NSWSC 232
Daley v Hughes (2014) 86 NSWLR 729; [2014] NSWCA 268
Diemasters Pty Ltd and Ors v Meadowcorp Pty Ltd, Narendra Jain and Charles Chelliah (Unrep, Supreme Court of New South Wales, Macready M, 16 July 2003)
Doyle v Hall Chadwick [2007] NSWCA 159
Firth v Centrelink (2002) 55 NSWLR 451; [2002] NSWSC 564
Flexible Manufacturing Systems v Alter [2004] NSWSC 29
Fordyce v Leung [2022] NSWCA 55
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383
Patterson v Cohen [2005] NSWSC 635
Rahme v Benjamin & Khoury Pty Ltd [2019] NSWCA 211
Rahme v Benjamin & Khoury Pty Ltd (No 2) [2019] NSWCA…

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: [2022] NSWSC 766
Decision Date: 14 June 2022

CaseChat Overview and Summary

In the case of Benjamin & Khoury Pty Ltd v Rahme, the parties involved were Benjamin & Khoury Pty Ltd, the plaintiff, and Rahme, the defendant. The nature of the dispute revolved around a judgment for costs awarded to the plaintiff, which was registered in accordance with a certificate of a costs assessor. The case was heard in the Supreme Court of New South Wales. The plaintiff sought a stay of execution of the judgment pending an appeal, while the defendant argued against the stay, contending that the appeal did not present a serious question to be tried and that the balance of convenience favoured enforcing the judgment.

The legal issues before the court included whether the registration of a certificate of costs assessor constituted a "proceeding" for the purposes of the Supreme Court Rules, and if so, whether the appeal against the Review Panel's determination was an appeal by way of rehearing. Additionally, the court had to determine whether Part 7 of the Legal Profession Uniform Law Application Act 2014 precluded the reliance on sections 67 and 135 of the Civil Procedure Act. The court also needed to assess whether there was a serious question to be tried in the appeal and to decide where the balance of convenience lay regarding the stay of execution.

The court found that the registration of the certificate did constitute a "proceeding," and the appeal against the Review Panel's determination was indeed an appeal by way of rehearing. The court held that Part 7 of the Legal Profession Uniform Law Application Act 2014 did not preclude the application of sections 67 and 135 of the Civil Procedure Act. The court further determined that there was a serious question to be tried in the appeal, and the balance of convenience favoured granting a stay of execution. Consequently, the court granted the stay on the condition that the defendant made a partial payment into court of the judgment sum.

This decision highlights the complex interplay between various legislative provisions and the court's discretion in granting stays of execution pending appeal, particularly in cases involving costs assessments and the enforcement of judgments. The outcome underscores the importance of the balance of convenience test and the need for a serious question to be tried to justify a stay of execution.

Orders