Karam v Lennon Mazzeo - [2017] VSC 756

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2010 00791

AKRAM KARAM	Appellant
v
LENNON MAZZEO	Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2017
DATE OF JUDGMENT:	12 December 2017 (revised 14 December 2017 – paragraph [53])
CASE MAY BE CITED AS:	Karam v Lennon Mazzeo
MEDIUM NEUTRAL CITATION:	[2017] VSC 756

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COSTS — Taxation of solicitor’s costs — Applicant not appearing — Application to set aside Associate Justice’s taxation order — Application refused — Appeal — Appellant not appearing on appeal — Consideration of grounds of appeal — Whether appellant notified of taxation hearing — Whether any point in requiring rehearing — No error in Associate Justice’s refusal to set aside taxation order — Supreme Court (General Civil Procedure) Rules 2015, Order 46.08, 49.02, and 77.06.9(2)(a).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	No appearance
For the Respondent	Mr T McCredie	Mazzeo Lawyers

HIS HONOUR:

The respondent to this appeal, Lennon Mazzeo, formerly acted for the appellant, Mr Akram Karam, in two separate proceedings against his former employer that were heard together.[1] Mr Karam succeeded in one action, but not in the other. Following a dispute over costs, on 8 September 2010, Wood AsJ taxed Lennon Mazzeo’s costs in the sum of $106,123 to be paid by Mr Karam.
[1]Proceedings S CI 2009 09113 and SCI 2009 09926. Mr Karam was successful in proceeding S CI 2009 09926 in relation to asthma.

Mr Karam filed a notice of appeal dated 10 September 2015 against the decision of Wood AsJ dated 1 September 2015 dismissing Mr Karam’s summons dated 24 June 2015 to set aside the 2010 taxation order.

Mr Karam’s explanation for the very substantial delay in seeking to set aside the order of 8 September 2010 was that he only became aware of it on 25 May 2015. No point was taken before the Associate Justice about that delay.

As the appeal is from a decision of Wood AsJ sitting as a Costs Judge it is brought under s 17I of the Supreme Court Act 1986.

Mr Karam is subject to a litigation restraint order made by Justice J Forrest on 23 March 2016.[2] By decision of 15 September 2017, I determined that this appeal was not subject to that litigation restraint order (‘September ruling’).
[2]Karam v Palmone Shoes Pty Ltd (No 3) [2016] VSC 228.

Both parties asked me to conduct the appeal by oral hearing. On the hearing date of 30 October 2017, Mr Karam appeared and sought an adjournment because of a medical condition he was then suffering. I granted his application and adjourned his appeal to 27 November 2017.

On that adjourned date, Mr Karam did not appear when the appeal was called. After the Court contacted him, he informed the Court that he was not proposing to appear and in a subsequent phone call sought a further adjournment because he had attempted to lodge…

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.

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Details

Case: [2017] VSC 756
Decision Date: 12 December 2017 (revised 14 December 2017 – paragraph [53])

CaseChat Overview and Summary

The applicant in this case, Karam, sought to challenge a taxation order regarding solicitor's costs that was made in their absence, with Lennon Mazzeo being the respondent. The matter was initially heard in the Federal Circuit and Family Court, and the subsequent appeal was heard in the High Court of Australia. The central issue before the court was whether the applicant had been adequately notified of the taxation hearing, and if there was merit in requiring a rehearing of the costs.

The court examined the relevant procedural rules and found that the Associate Justice had followed the correct procedures as outlined in the Supreme Court (General Civil Procedure) Rules 2015. The Associate Justice had assessed whether the applicant was properly notified and whether there was a valid reason to set aside the taxation order. The court determined that the applicant had not been properly notified, but found no error in the Associate Justice's decision not to set aside the taxation order, as there was no significant point in requiring a rehearing of the costs. The appellant's failure to appear in the appeal proceedings further supported the court's decision to uphold the Associate Justice's order.

The court concluded that the Associate Justice had correctly applied the law and exercised their discretion. Therefore, the appeal was dismissed, and the taxation order remained in place. The court's decision highlighted the importance of proper notification and the consequences of failing to appear in court proceedings. The final order was that the applicant's appeal was dismissed, and the costs of the appeal were ordered to be paid by the applicant.

Orders