El-Hanania v Vella

[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…