El-Hanania v Vella

Case [2019] NSWCA 167


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: El-Hanania v Vella [2019] NSWCA 167
Hearing dates: 3 July 2019
Date of orders: 03 July 2019
Decision date: 10 July 2019
Before: Gleeson JA at [1]; Payne JA at [2]; McCallum JA at [3]
Decision:

1.   Subject to the conditions in paragraph 2 below, extend the time for filing of the Summons to 1 April 2019.

 

2.   Within 28 days of today the applicant is to:

 

(a)   pay into the Court the sum of $212,765.37 to abide the further order of the Court;

 

(b)   provide security for costs in a form satisfactory to the Registrar of the Court in the amount of $35,000;

 

3.   Otherwise dismiss the respondent’s amended notice of motion filed 15 April 2019.

 

4.   Reasons are reserved.

 5.   Proceedings are stood over to Monday, 5 August 2019 for directions before the Registrar.
Catchwords:

CIVIL PROCEDURE – time – extension of time – whether extension should be granted in proceedings for judicial review commenced out of time

  COSTS – security for costs – whether exceptional circumstances established
Legislation Cited: Legal Profession Act 2004 (NSW), s 368
Uniform Civil Procedure Rules, rr 36.15, 59.10, 59.11
Cases Cited: Dillon v Boland; Dillon v Cush [2012] NSWCA 364
Nobarani v Mariconte [2018] HCA 36 at [38]; 92 ALJR 806
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Dyason v Butterworth [2015] NSWCA 52
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Category:Principal judgment
Parties: Saba El-Hanania (applicant)
Alon Joseph Vella (first respondent)
Representation:

Counsel:
M Castle, AE Duc, TJ Krayem (applicant)
P Tierney, JA Hillier (first respondent)

  Solicitors:
Aba El-Hanania Lawyers (applicant)
Rickards Whiteley Lawyers (first respondent)
File Number(s): 2019/101284
Publication restriction: None
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Citation:
[2018] NSWDC 206; [2018] NSWDC 207
Date of Decision:
31 May 2018
Before:
Neilson DCJ
File Number(s):
2017/322206; 2018/68777

Judgment

  1. GLEESON JA: My reasons for joining in the orders made on 3 July 2019 accord with the reasons of McCallum JA.

  2. PAYNE JA: I have read the judgment of McCallum JA in draft. Her Honour’s reasons encapsulate my reasons for joining in the orders of the Court made on 3 July 2019.

  3. McCALLUM JA: These are proceedings for judicial review of two decisions concerning the costs charged by a solicitor, Mr Saba El-Hanania. The proceedings required an extension of time and also faced an application by Mr El-Hanania’s former client, Mr Alon Vella, for security for costs. This judgment addresses those two applications.

  4. Mr El-Hanania acted as Mr Vella’s solicitor in a claim for damages for personal injury arising out of an accident that both involved a motor vehicle and occurred at work. After those proceedings had been resolved favourably to Mr Vella, a dispute arose between Mr El-Hanania and Mr Vella as to legal costs. The dispute has a complex procedural history which is addressed in detail…

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AGLC
El-Hanania v Vella [2019] NSWCA 167
Case
[2019] NSWCA 167
Decision Date

CaseChat Overview and Summary

In *El-Hanania v Vella*, the applicant sought an extension of time to file a summons in proceedings for judicial review. The respondent sought security for costs. The matter came before Gleeson, Payne and McCallum JJA of the Court of Appeal of New South Wales.

The primary legal issue before the Court was whether to grant the applicant an extension of time to commence their judicial review proceedings, which had been filed out of time. A secondary issue was whether the respondent had established exceptional circumstances warranting an order for security for costs.

The Court considered the principles governing extensions of time for judicial review, balancing the applicant's need for access to justice against the respondent's interest in finality and the efficient administration of justice. The Court also examined the criteria for ordering security for costs, particularly in the context of judicial review proceedings. The Court ultimately decided to grant the extension of time, subject to certain conditions.

The Court ordered that, subject to the applicant paying $212,765.37 into Court and providing security for costs in the amount of $35,000 within 28 days, the time for filing the Summons would be extended to 1 April 2019. Otherwise, the respondent's amended notice of motion would be dismissed. Reasons for the decision were reserved, and the proceedings were stood over for directions.

Orders

Orders of the court

1. Subject to the conditions in paragraph 2 below, extend the time for filing of the Summons to 1 April 2019.

2. Within 28 days of today the applicant is to:

(a) pay into the Court the sum of $212,765.37 to abide the further order of the Court;

(b) provide security for costs in a form satisfactory to the Registrar of the Court in the amount of $35,000;

3. Otherwise dismiss the respondent’s amended notice of motion filed 15 April 2019.

4. Reasons are reserved.

5. Proceedings are stood over to Monday, 5 August 2019 for directions before the Registrar.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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