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

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.
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.
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.
Late…

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 Boustany v Sassine

Details

AGLC: Boustany v Sassine [2014] NSWSC 1818
Case: [2014] NSWSC 1818
Decision Date: 18 December 2014

CaseChat Overview and Summary

Boustany v Sassine involves an appeal brought by the appellant to the Local Court in an attempt to overturn a decision made in a lower court. The respondent challenged the competency of the appeal, arguing that the appellant needed leave from the court to proceed with the appeal as of right. The issue was whether the appellant needed leave to appeal and whether the respondent was entitled to indemnity costs. The appeal was abandoned immediately before the court was to determine the competency of the appeal. The respondent sought indemnity costs for the time spent on the appeal, and the court was required to consider the proportionality of the costs in relation to the amount in dispute, which was $10,000.

The court found that the appeal was incompetent because the appellant had not obtained leave from the court to proceed with the appeal as of right. The court held that the respondent was entitled to indemnity costs for the time spent on the appeal. However, the court found that the amount of indemnity costs sought by the respondent was disproportionate to the amount in dispute. The court ordered the costs to be assessed on a gross lump sum basis, rather than on an itemised basis, to reflect the proportionality of the costs in relation to the amount in dispute.

The court held that the appeal was incompetent as the appellant had not obtained leave from the court to proceed with the appeal as of right. The court found that the respondent was entitled to indemnity costs for the time spent on the appeal. However, the court found that the amount of indemnity costs sought by the respondent was disproportionate to the amount in dispute. The court ordered the costs to be assessed on a gross lump sum basis, rather than on an itemised basis, to reflect the proportionality of the costs in relation to the amount in dispute.

The court ordered that the respondent was entitled to indemnity costs for the time spent on the appeal, but the costs were to be assessed on a gross lump sum basis. The court found that the amount of indemnity costs sought by the respondent was disproportionate to the amount in dispute, which was $10,000. The court held that the appeal was incompetent as the appellant had not obtained leave from the court to proceed with the appeal as of right.

Orders