Hamod v Diab

[2011] NSWCA 205

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hamod v Diab [2011] NSWCA 205

Hearing dates:

21 July 2011

Decision date:

21 July 2011

Before:

Beazley JA
Giles JA
Whealy JA

Decision:

1. Summons for leave to appeal dismissed;

2. The applicant is to pay the first respondent's costs of the summons for leave to appeal;

3. The Court makes no order as to the costs of the State, who was joined this morning as a second respondent to the application and in circumstances where the State made a submitting appearance save as for costs and did not take part in the argument on the leave application.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Category:

Interlocutory applications

Parties:

Anthony Hamod (Applicant)
Simon Diab (First Respondent)
State of New South Wales (Second Respondent)

Representation:

A Smith (Applicant)
R McKeand SC (First Respondent)
M Maconachie (Second Respondent)
John Stonham & Co Lawyers (Applicant)
Simon Diab & Associates (First Respondent)
I V Knight Crown Solicitor (Second Respondent)

File Number(s):

2008/289135

 Decision under appeal 

Date of Decision:

2010-07-01 00:00:00

Before:

Harrison J

Judgment

1. THE COURT : The Court refuses leave in this matter.

1. The applicant contended that the trial judge erred in making a declaration in terms of para 2 of the orders made on 1 July 2010 in respect of the respondent's lien over costs payable by the State of New South Wales to the applicant and in rejecting certain evidence. In regard to the rejection of evidence, the applicant, in submissions today, focused upon a letter dated 14 December 2007 from the first respondent to the applicant. It was said that that letter evidenced either a contract or an arrangement between the applicant and the first respondent whereby the applicant would be repaid, out of the costs payable by the State and to which the lien was claimed to attach, a sum of money equivalent to the monies that the applicant had already paid for counsel's fees.

1. The trial judge rejected the evidence on the basis that it did not relate to the question in issue before him, namely, whether the solicitor, that is, the first respondent, had a lien over the costs ordered to be paid by the State. There was no error in the trial judge's rejection of that evidence. His Honour was not concerned with any question of the rights between the applicant and the first respondent as to the amount each may have been entitled to receive out of the costs payable by the State, when those costs were in fact paid.

1. The issue was, as previously stated, whether the first respondent had a lien over those costs. His Honour was correct to find that the first respondent had such a lien and he correctly made a declaration to that effect. That declaration does not touch upon any issue as between the applicant and the first respondent arising out of any alleged contract or arrangement referred to in the letter of 14 December 2007.

1. The orders of the Court are as follows:

1. Summons for leave to appeal dismissed:

2. The applicant is to pay the first respondent's costs of the summons for leave to appeal;

3. The Court makes no order as to the costs of the State, who was joined this morning as a second respondent to the application and in circumstances where the State made a submitting appearance save as for costs and did not take part in the argument on the leave application.

**********

Decision last updated: 19 September 2011