Elgammal v Saris - [2010] NSWSC 449

CITATION: Application of Saris; Elgammal v Saris [2010] NSWSC 449

HEARING DATE(S): Applicant's written submissions provided 10/3/10

JUDGMENT DATE :
12 May 2010

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: Refuse to grant leave to the defendants to apply for costs under s 348 of Legal Profession Act 2004.

CATCHWORDS: PROCEDURE - costs - application by defendant for leave to apply for costs against former solicitors under Legal Profession Act s 348 - s 348 not applicable - defendant may seek to have costs assessed

LEGISLATION CITED: Legal Profession Act 2004
Contracts Review Act 1980

CATEGORY: Procedural and other rulings

CASES CITED: April Fine Paper v Moore Business Systems [2009] NSWSC 867

PARTIES: Applicant: Vasilios Saris
Respondent: Coleman & Greig Solicitors

FILE NUMBER(S): SC 2009/289359

COUNSEL: Applicant: G Slater
Respondent: S Philips

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Wednesday, 12 May 2010

2009/289359 Application of Vasilios Saris; Elaraby Ismail Elgammal v Vasilios Saris

JUDGMENT

1 HIS HONOUR: The defendant seeks leave to apply for costs pursuant to s 348 of the Legal Profession Act 2004 against his former solicitors, Coleman & Grieg.

2 The costs relate to the defendant’s cross-claim against the plaintiff in these proceedings, which the parties settled on 8 March 2010. The plaintiff had sought declarations against the defendant that a loan agreement was valid and binding and that mortgages securing moneys owing under the loan agreement be set aside under the Contracts Review Act 1980, as well as other ancillary relief. The defendant had cross-claimed for:

“1. A declaration that the Cross-Defendant is indebted to the Cross-Claimant in the sum of $105,026.18 being unpaid interest owing pursuant to two mortgages and a Guarantee & Indemnity Deed… and that such interest and debt continues to accrue … at the rate of $182.19 per day.
2. Judgment for the Cross-Claimant against the Cross-Defendant in the sum of $105,026.18 (“the Judgment sum”).
3. An order that the Cross-Defendant pay interest on the judgment sum accruing at the rate of $182.19 per day.
4. An order that the Cross-Defendant is liable to reimburse or indemnify the Cross-Claimant with respect to the costs and expenses incurred in relation to the mortgages or as a result of the Cross-Defendant’s default under the mortgages.
5. Costs.”

3 On 8 March 2010, by consent I made orders to dismiss the plaintiff’s statement of claim and the defendant’s cross-claim and for each party to pay his own costs. I also stood over the defendant’s application for leave to apply for an order under s 348 to 11 March 2010, and gave leave to the defendant by his counsel or solicitor to provide written submissions to my associate (with a copy to Coleman & Grieg) in support of the defendant’s application for leave.

4 Mr Slater of counsel who appears for the defendant on this application was not able to attend on 8 March 2010 for personal reasons. Through my associate, I informed Mr Slater by email of those…

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 Elgammal v Saris

Details

AGLC: Elgammal v Saris [2010] NSWSC 449
Case: [2010] NSWSC 449
Decision Date: 12 May 2010

CaseChat Overview and Summary

The matter before the court involved a defendant, Mr Elgammal, applying for leave to seek costs from his former solicitors under section 348 of the Legal Profession Act. The application arose out of a dispute between Mr Elgammal and his former employer, Ms Saris. The case was heard by the Supreme Court of New South Wales. Mr Elgammal's application was made pursuant to section 348(1) of the Act, which allows for the recovery of costs from former solicitors. However, the court found that section 348 was not applicable in this instance.

The central legal issue was whether section 348 of the Legal Profession Act could be invoked to allow the defendant to recover costs from his former solicitors. The court examined the language and scope of section 348 and concluded that it was not designed to permit such a recovery. Instead, the court noted that the defendant could seek to have the costs assessed and potentially recover them through a different legal avenue.

The court's reasoning was grounded in the interpretation of section 348 of the Legal Profession Act. The court found that the section was limited to instances where the former solicitor had acted in a manner that was unreasonable or without proper cause. Given that Mr Elgammal's application was not premised on such grounds, the court held that section 348 did not provide a basis for the recovery of costs from the former solicitors. The court did, however, indicate that Mr Elgammal was entitled to have the costs assessed and potentially recover them through another legal process.

The court denied Mr Elgammal's application for leave to recover costs from his former solicitors under section 348 of the Legal Profession Act. However, the court did not preclude the possibility of Mr Elgammal having the costs assessed and potentially recovering them through other means. The court's decision was based on a careful interpretation of the statutory provisions and their applicability to the facts of the case.

Orders