Benjamin & Khoury Pty Ltd v Rahme (No 3)

[2022] NSWSC 1802

Supreme Court

New South Wales

Medium Neutral Citation:

Benjamin & Khoury Pty Ltd v Rahme (No 3) [2022] NSWSC 1802

Hearing dates:

03 November 2022

Decision date:

03 November 2022

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   The Court grants leave for the plaintiff/appellant to file a Further Amended Summons as provided to the Court.

(2)   The defendant has leave, by 5pm 21 November 2022, to file any evidence in relation to the new ground of appeal.

(3)   The substantive appeal is adjourned to be listed by the list clerk not before 24 November 2022 with an estimate of two (2) days.

(4)   Costs for today will be the respondent’s costs in the appeal.

Catchwords:

COSTS – costs assessment – appeal against two assessments – procedural motion within appeals – leave to file and serve new Statement of Claim – leave to file further evidence – substantive appeal adjourned

Category:

Procedural rulings

Parties:

Benjamin & Khoury Pty Ltd (Plaintiff)
Dana Rahme (First Defendant)
John Sharpe (Second Defendant)
Greg Walsh OAM (Third Defendant)

Representation:

Counsel:
Ms M Castle with Mr D Smith (Plaintiff)
Mr C Bevan (First Defendant)
Submitting Appearances (Second and Third Defendant)

Solicitors:
(Plaintiff)
Solon Lawyers (First Defendant)
Crown Solicitor’s Office (Second and Third Defendant)

File Number(s):

2021/330107; 2021/330110

EX TEMPORE JUDGMENT

1. HIS HONOUR: Before the Court are two summonses commencing proceedings, each being an appeal against a decision of a Costs Assessment Review Panel in relation to two costs assessments for the payment of costs by this plaintiff to the defendant. The assessments were conducted pursuant to two orders of the Court following successful proceedings brought by this defendant at first instance, and on appeal, in this Court. There is no appeal against either of the orders of the Court.

2. Today it was listed for the substantive appeal in relation to these matters. There are, as I understand it — provided to me today by way of photocopy — three copies of authorities upon which the parties seek to rely, and there are six volumes of material upon which the parties seek to rely in the appeal. The matter was given an estimate of a day. It is now 12 o'clock, or thereabouts, and the parties have been arguing since the commencement of proceedings about an application for a Further Amended Summons to be filed.

3. The Further Amended Summons, there being one in each of the appeals, is different in relation to each of the costs appeals. In the appeal against the review panel for the costs assessment relating to the costs ordered by the Court in the first instance decision, the amendments that are sought are less significant in terms of the effect than is the situation in relation to that proceeding which deals with the assessment of costs in relation to an appeal in which costs were ordered, this being the appeal against what I earlier referred to as the ‘first instance’ decision. In each case, the review panel was the same and consisted of experienced counsel and experienced solicitors.

4. The orders that are sought in each of the summonses include interlocutory orders, the relevance of which for today is at least limited in any direct sense, and is not the matter that was otherwise listed for hearing. The second Prayer for Relief is a prayer essentially seeking to set aside the initial costs assessment and the costs review panel determination, which confirmed the original costs assessments.

5. In the first instance costs appeal so called, an amendment is sought such that any moneys held otherwise to be payable to the first defendant for party-party costs be paid into Court pending the conclusion of another set of proceedings. I will later describe what that other set of proceedings is. The appellant also seeks a further stay or a continuation of the stay initially ordered pursuant to the prayer for relief to which I earlier referred being the suspension of the effect of the costs orders.

6. In the appeal against the costs assessment in relation to the appeal proceedings, there are significant differences in the relief that has been sought. First, the amended document seeks to delete the prayer for relief which sought an order of this Court referring the matter, presumably if the Court were otherwise minded to set aside the costs assessment, to a referee for the purpose of determination of the costs that are payable pursuant to the order on the appeal earlier made.

7. Secondly, it seeks that the Court should determine the issue itself. Thirdly, it seeks the addition of two further prayers for relief one of which is the same or in similar terms to that which is sought in relation to the issues arising from the first instance costs order, seeks a stay of that judgment pending determination of these proceedings and presumably including the referee’s report, and also seeks that the order that money otherwise payable to the first defendant for party-party costs be stayed.

8. The defendant opposes the amendments in part because the effect of the amendment to the appeal against the costs assessment for the appeal proceedings is that there would be no application then for a substantive order of the Court arising as a result of the amendment. In other words, nothing then arises which is a prayer for the determination by the Court of the costs that are otherwise payable. The defendant/respondent submits that, on the proposed construction of s 89 of the Legal Profession Uniform Law (NSW), leaving aside remitter issues, the Supreme Court should deal with the matter expeditiously.

9. Secondly, the respondent submits that the Supreme Court should seek to deal finally with the issues between the parties and for that purpose is given all of the powers of a costs assessor and all of those powers may be exercised on the appeal.

10. There are grounds of appeal that have been deleted. I do not need to comment on those and the deletion of them does not prejudice anybody but there are two additional amendments to the grounds of appeal which add issues by the provisions of paragraph 2(b)(1A). The appellant claims that the liability to the third-party lawyers, which liability was the basis of the costs assessment, is wrongly decided because, essentially, the lawyers, that is the third-party lawyers, are now out of time to apply for an assessment under s 198 of the Legal Profession Uniform Law. Paragraph 2(1)(b) of the grounds refers to the Legal Profession Uniform Law as applying in relation to the requirement for a costs order to have a single figure estimate of total legal costs pursuant to the terms of section 174 of the aforementioned Act.

11. The defendant/respondent to the appeal in these proceedings objects to the addition of [2(b)(1A)] on the basis that there has been a denial of the opportunity to answer the claim and to adduce evidence on the issue. I do not think I have yet mentioned that these further amended summonses were served on the respondent approximately two days before today’s hearing and the documents I have in the Court Book are undated but, plainly, they have been served after each of the parties has been before the Court in a number of interlocutory proceedings and obtained orders. The matter was listed today on the basis that the proceedings were ready for hearing.

12. It is a special fixture listed for one day and tomorrow I have other proceedings. It is now 5 past 12. In my view, which accords with the latest indication from counsel for the appellant, there is no possibility that the substantive appeal will subsequently commence and conclude today. The question then is, what should I do about that which is before me?

13. I make it clear that the Court, pursuant to the terms of s 23 of the Supreme Court Act 1970 (NSW) and pursuant to the Royal Charter of Justice of April 1824, has inherent jurisdiction to deal with matters. Of course, those matters must be dealt with judicially and in accordance with the law and bearing in mind the enjoinder by the legislature that the Court should facilitate, as, I hasten to add, should counsel, solicitors and the parties, the quick, cheap and just resolution of the real issues between the parties. I have already mentioned third party lawyers and claims against them.

14. Apparently, there are proceedings before a different costs assessor relating to the costs owed to those third party solicitors which costs are the subject of claim and/or dispute in the appeal that is before the Court and were the subject of assessment by the costs assessor and the review committee. Those proceedings, I am told from the bar table, are listed for April 2023.

15. There are aspects relating to that circumstance on which I need to comment. First, the fact, if it be the fact, that a party does not seek all of the remedies that are appropriate in a proceeding, does not in and of itself deny the Court the jurisdiction to hear the appeal.

16. The Court, pursuant to its inherent power and pursuant to s 62 of the Supreme Court Act, has the power to determine the issues finally and to grant all remedies to which the Court considers the party that is successful is entitled. As a consequence, the fact and/or circumstance that the appellant has not sought an order for the determination of the costs or for a reference to a referee pursuant to the powers of the Court, does not mean that the Court, if it were otherwise minded so to do, could not, subject to procedural fairness being applied, refer the matter for assessment, nor assess for itself the costs to be determined, assuming in that regard that the Court be otherwise minded to determine the matter favourably to the appellant.

17. Over and above the foregoing, if the Court were to set aside the order of the costs assessor and the order of the review panel, there is a nice question as to what, if anything, was before courts or tribunals in relation to the costs. It would seem to me, at least drawing an analogy from certiorari, which is significantly different and does not set aside but quashes orders, that the application for a costs assessment would be extant and would not have been dealt with in accordance with the law. Then, orders could be granted by the Court requiring the costs assessor and/or the review panel to deal with the matter in accordance with law.

18. Lastly, all of the foregoing assumes that the Court would be otherwise minded to grant the appeal. The Court has formed no such view and it is for the appellant to satisfy the Court: first, that leave ought be granted to adduce additional evidence; and, secondly, that even if it were to adduce additional evidence, the matter should be determined in favour of the appellant.

19. It would seem to me, on a general understanding of the authorities, that a costs assessor and a review of such a costs assessor has the capacity to determine costs notwithstanding that the costs have not yet been paid or are subject to conditions such as no win/no pay or only those costs that can be recovered.

20. It is an interesting and somewhat circular problem that, where there be a costs agreement, which limits the costs recoverable by legal practitioners to those costs that are recovered from the other side, if the costs assessor, and, on appeal, a review panel, were not able to assess those costs, then no costs would ever be payable, The costs could not be assessed in any proceedings against the solicitor appearing, because the costs have not been recovered, and it could not be assessed in the party/party costs assessment because it is only payable when it is recovered.

21. Of necessity, comfort for such a view is provided by authorities dealing with slightly different points. The costs assessor plainly has the jurisdiction to determine the costs notwithstanding that the costs have not been paid and the costs are the subject of conditions such as that which are yet to be argued in separate proceedings. The determination of those matters is done on the best evidence that is available to the court or tribunal that is dealing with it.

22. In short, it seems to me that two things arise: First, the mere circumstance that the appellant has deleted certain substantive orders that are sought ought not stand in the way of the appellant arguing before the Court for the orders that it seeks. It is then for the Court to determine what orders it would make bearing in mind the provisions to which I have already referred.

23. Secondly, the delay in filing this summons has plainly caused some prejudice. I do not criticise counsel who are appearing in the proceedings today for the delay as there seems to have been an alteration or late change in the counsel who was otherwise to appear. Frankly, criticisms of that kind are pointless anyway. But it does seem to me that the grounds upon which the appellant should be allowed to proceed are the grounds that it seeks to argue in terms of a just outcome.

24. If, as I accept is the case, there is a prejudice to the defendant associated with the inability to adduce evidence that answers a ground, that can be dealt with in other ways. In short, the Court will permit the filing of the further amended summons in each matter, including the further ground in paragraph 2(b)(IA) of the grounds, in the appeal against determination of costs in relation to the costs order on the appeal.

25. Having said that, particularly given that I am now of the view that the appeal will not finish today anyway, the defendant should be given an opportunity to file what evidence it seeks to file in relation to the new ground of appeal. This is evidence that seems readily available. It is appropriate to order that any new evidence on this issue be filed within seven days.

26. The Court makes the following orders and directions, namely that the Orders/Directions entered on 3 November 2022 be varied as follows:

1. The Court grants leave for the plaintiff/appellant to file a Further Amended Summons as provided to the Court.

2. The defendant has leave, by 5pm 21 November 2022, to file any evidence in relation to the new ground of appeal.

3. The substantive appeal is adjourned to be listed by the list clerk not before 24 November 2022 with an estimate of two (2) days.

4. Costs for today will be the respondent’s costs in the appeal.

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Decision last updated: 18 April 2023