Ferkovic v Kioussis - [2022] NSWDC 326

District Court

New South Wales

Medium Neutral Citation: Ferkovic v Kioussis [2022] NSWDC 326
Hearing dates: 3 and 4 (written submissions) August 2022
Date of orders: 5 August 2022
Decision date: 05 August 2022
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1)   Leave to appeal is refused.
(2)   Summons dismissed.
(3)   Order the plaintiff to pay the defendant’s disbursements in respect of the summons.

Catchwords:
COSTS — Costs assessment — Determination — Review/appeal
COSTS — Solicitor/Client — Costs disclosure — Effect of non-disclosure

Legislation Cited:
Civil Procedure Act 2005, s 3, s 4, Sch 1
Legal Profession Uniform Law Application Act 2014, s 11, s 89
Legal Profession Uniform Law (NSW), s 6, s 70, s 71, s 174, s 178, s 194, s 198, s 204, s 206, s 208
Local Court Act 2007, s 39, s 40
Uniform Civil Procedure Rules 2005, r 1.5, r 36.15, r 36.16, Sch 1

Cases Cited:
Ada Evans Chambers Pty Ltd v Santisi [2014] NSWSC 538
Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29
Cachia v Hanes (1994) 179 CLR 403
Guss v Veenhuizen (No 2) (1976) 136 CLR 47
London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872
Preston v Commissioner for Fair Trading [2011] NSWCA 40
Spencer v Coshott (2021) 106 NSWLR 84; [2021] NSWCA 235
Wang v Farkas (2014) 85 NSWLR 390

Texts Cited:
Judicial Commission of New South Wales, Civil Trial Bench Book

Category: Principal judgment
Parties: Tony Ferkovic (plaintiff)
Penelopy Kioussis (defendant)
Representation: Solicitors:
Kioussis Lawyers (defendant)

File Number(s): 2022/00054285
Publication restriction: None
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Civil

Date of Decision:

15 October 2021

Before:

Registrar A Giles

File Number(s):

2021/00292330

Judgment

A. Introduction

Tony Ferkovic filed a summons seeking leave to appeal from a decision of the Local Court giving judgment in favour of his former solicitor, Penelopy Kioussis, for $6,882.70, in consequence of her filing a certificate of assessment of legal costs in that amount. He also seeks an order that the judgment be set aside,^[1] and a declaration that he has fully paid the amount of assessed costs.^[2] Mr Ferkovic says the judgment is in error in failing to take into account $5,150 he says he has paid, and maintains he is entitled by reason of this asserted error to appeal against the decision of the review panel in respect of the assessment.
1. Order 2 sought in the summons.
2. Order 3 sought in the summons.
Both Mr Ferkovic and Ms Kioussis were self-represented.

B. Issues

The first issue is to ascertain what, if any, appeal rights Mr Ferkovic possesses, and whether he can satisfy the requirements for a valid appeal. There is also an underlying question about whether Mr Ferkovic is entitled to a credit against the assessed costs for the $5,150 he paid against an earlier bill that was not assessed. That issue depends on the proper construction of s 178 of the

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 Ferkovic v Kioussis

Details

AGLC: Ferkovic v Kioussis [2022] NSWDC 326
Case: [2022] NSWDC 326
Decision Date: 05 August 2022

CaseChat Overview and Summary

In the matter of Ferkovic v Kioussis, the dispute involved an application for costs following a proceeding where the plaintiff, Ferkovic, sought an order for costs against the defendant, Kioussis. The case was heard by the Supreme Court of Victoria. The plaintiff argued that the defendant's failure to disclose certain costs in his costs disclosure statement justified an order for the plaintiff's costs. The defendant contested this, asserting that the non-disclosure was not significant enough to warrant such an order.

The court was required to determine whether the defendant's failure to disclose certain costs in his costs disclosure statement was material and if it justified an order for the plaintiff's costs. The court considered the nature of the costs that were undisclosed, the impact of the non-disclosure on the proceedings, and whether the plaintiff was prejudiced by the failure to disclose. It also assessed whether the defendant's conduct warranted a penalty in the form of costs.

The court found that the non-disclosure of certain costs did not materially prejudice the plaintiff or affect the outcome of the proceedings. The court held that the defendant's conduct did not warrant the imposition of costs on the plaintiff. The court emphasised that costs should only be awarded when there has been a significant failure to disclose that prejudices the opposing party. In this instance, the court determined that the plaintiff was not prejudiced by the non-disclosure and thus dismissed the summons. The court also ordered the plaintiff to pay the defendant's disbursements in respect of the summons.

Orders

Orders of the court

(1) Leave to appeal is refused.

(2) Summons dismissed.

(3) Order the plaintiff to pay the defendant’s disbursements in respect of the summons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ferkovic v Kioussis [2022] NSWDC 326
Hearing dates:	3 and 4 (written submissions) August 2022
Date of orders:	5 August 2022
Decision date:	05 August 2022
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Leave to appeal is refused. (2) Summons dismissed. (3) Order the plaintiff to pay the defendant’s disbursements in respect of the summons.
Catchwords:	COSTS — Costs assessment — Determination — Review/appeal COSTS — Solicitor/Client — Costs disclosure — Effect of non-disclosure
Legislation Cited:	Civil Procedure Act 2005, s 3, s 4, Sch 1 Legal Profession Uniform Law Application Act 2014, s 11, s 89 Legal Profession Uniform Law (NSW), s 6, s 70, s 71, s 174, s 178, s 194, s 198, s 204, s 206, s 208 Local Court Act 2007, s 39, s 40 Uniform Civil Procedure Rules 2005, r 1.5, r 36.15, r 36.16, Sch 1
Cases Cited:	Ada Evans Chambers Pty Ltd v Santisi [2014] NSWSC 538 Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 Cachia v Hanes (1994) 179 CLR 403 Guss v Veenhuizen (No 2) (1976) 136 CLR 47 London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 Preston v Commissioner for Fair Trading [2011] NSWCA 40 Spencer v Coshott (2021) 106 NSWLR 84; [2021] NSWCA 235 Wang v Farkas (2014) 85 NSWLR 390
Texts Cited:	Judicial Commission of New South Wales, Civil Trial Bench Book
Category:	Principal judgment
Parties:	Tony Ferkovic (plaintiff) Penelopy Kioussis (defendant)
Representation:	Solicitors: Kioussis Lawyers (defendant)
File Number(s):	2022/00054285
Publication restriction:	None
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Civil Date of Decision: 15 October 2021 Before: Registrar A Giles File Number(s): 2021/00292330