Boustany v Sassine

[2014] NSWSC 1818

Supreme Court

New South Wales

Case Title:

Boustany v Sassine

Medium Neutral Citation:

[2014] NSWSC 1818

Hearing Date(s):

18 December 2014

Decision Date:

18 December 2014

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. The summons filed 20 October 2014 is dismissed.

2. The Plaintiff is to pay the Defendant's costs fixed in the sum of $25,000.

Catchwords:

APPEAL - appeal to the Court from the Local Court - purported appeal as of right -challenge to the competency of the appeal - need for leave - abandonment of appeal immediately before competency was to be determined - defendant seeks indemnity costs - proportionality - amount in dispute in the appeal was $10,000 - costs on a gross lump sum basis

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Local Court Act 2007 (NSW)

Cases Cited:

Hamod v New South Wales (No 13) [2009] NSWSC 756
Young v Hones (No. 3) [2014] NSWSC 499
Zepinic v Chateau Constructions (Aust) Ltd (No. 2) [2014] NSWCA 99

Category:

Costs

Parties:

Habib Boustany (Plaintiff)
George Sassine ( Defendant)

Representation

- Counsel:

Counsel:
No appearance (Plaintiff)
S Boland ( Defendant)

- Solicitors:

Solicitors:
In person (Plaintiff)
Madison Marcus Law Firm ( Defendant)

File Number(s):

2014/307373

JUDGMENT

1. These proceedings commenced on 20 October 2014. The proceedings are an appeal from a decision of a magistrate in the Local Court in a civil matter. Six appeal grounds were specified. Leave was not sought in the summons to appeal. The Defendant moved by Motion filed 25 November 2014 for the appeal to be dismissed on the grounds that it was incompetent for not having sought leave.

2. Leave was said to be necessary because three of the grounds of appeal, that is grounds 2, 3 and 4, concerned costs and s 40(2)(c) of the Local Court Act2007 (NSW) required leave to be sought if there was an appeal in relation to costs. The remaining grounds, that is grounds 1, 5 and 6, necessarily involved disputes as to facts found by the magistrate in the court below. In those circumstances, at a minimum, leave was necessary because a mixed question of law and fact was involved. It may be that one or more of those grounds involved only issues of fact. No such appeal is available from the Local Court in respect of such an error.

3. The Notice of Motion was fixed for hearing on 11 December before me. On the previous evening, communication had been received from the Plaintiff who indicated that he was seeking an adjournment of the hearing of the Motion. On 11 December when the Defendant's Motion was listed for hearing I accepted a Notice of Motion filed by the Plaintiff seeking an adjournment to enable him to get legal advice in the matter. The adjournment was granted, but I informed the Plaintiff at that time that, regardless of whether he had a lawyer available today, the date to which I stood both notices of Motion over, I would proceed to hear the Defendant's Motion.

4. Late yesterday afternoon both my Associate and the Defendant were notified that the Plaintiff was withdrawing his appeal. He has not appeared this morning.

5. The Defendant now seeks indemnity costs in relation to the appeal. It is put on the basis of the Magistrate's findings where indemnity costs were ordered in the court below and also on the basis of the fact that the appeal as framed was always incompetent.

6. It seems to me in the circumstances that both those matters provide a sufficient basis for an order that there should be an order for indemnity costs in the matter. The Magistrate held that the Defendant's claim against the Plaintiff was indefensible and had no merit. The Defendant had written a letter saying he would accept less than the amount in respect of which the Magistrate gave judgment.

7. The Plaintiff always needed leave to appeal. He had no appeal as of right. The Defendant's motion challenged the competency of the appeal on that basis. The Plaintiff only appears to have accepted that assertion yesterday afternoon. It was unreasonable for the Plaintiff to have brought the appeal as of right.

8. The real dispute in the court below involved an amount of $10,000. Regard must therefore be had to s 60 of the Civil Procedure Act2005 (NSW). For that reason I consider it is appropriate to fix a specified gross sum pursuant to s 98(4)(c) of the Act rather than requiring the Defendant to go through the assessment process if agreement was not able to be reached with the Plaintiff on the amount of costs.

9. The Defendant reads an affidavit of Maria Marta Yum sworn 18 December 2014. Ms Yum has annexed to her affidavit a complete breakdown of the costs incurred by her firm in relation to the appeal, as well as the fees charged by counsel who appeared in the Local Court and in this Court. In my opinion, those costs appear to be entirely reasonable given the nature of the proceedings. Those costs total $28,692.28.

10. When assessing the costs for the purpose of making a gross sum order a broad brush approach may be taken: Zepinic v Chateau Constructions (Aust) Ltd (No. 2) [2014] NSWCA 99 at [31] and [38]; Hamod v New South Wales (No 13) [2009] NSWSC 756 at [31]; see also Hamod at [819]-[820] and Young v Hones (No. 3) [2014] NSWSC 499 at [28]-[30].

11. I consider that there should be some modest reduction in the costs otherwise demonstrated to allow for the fact that there will be no assessment process to be followed and to guard against errors by a judge in accepting sums provided by the legal representative of the successful party.

12. In those circumstances, I consider it would be appropriate to order a specified gross sum of $25,000 in respect of the proceedings.

13. The orders that I will make, therefore, are that:

    1. The summons filed 20 October 2014 is dismissed.

    2. The Plaintiff is to pay the Defendant's costs fixed in the sum of $25,000.

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