Legal Research
Cases
Kassem v Koutavas

Kassem v Koutavas

Case [2012] NSWSC 236 16 March 2012

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Kassem & Secatore as joint liquidators of Pan Pacific Age Care Services Pty Ltd (in liq) & Anor v Koutavas [2012] NSWSC 236
Hearing dates: 27 February 2012
Decision date: 16 March 2012
Jurisdiction: Equity Division
Before: Ward J
Decision:
Costs judgment set aside. Entry of costs judgment in lieu thereof.

Catchwords: COSTS - costs assessment scheme - enforcement of cost certificates issued pursuant to ss 368 and 369 Legal Profession Act 2004 (NSW) - where both certificates lodged together and, pursuant to ss 386(5) and 369(7) Legal Profession Act 2004 (NSW), entered as single judgment for cost applicant - whether judgment entered irregularly on the basis that money payable under s 369 certificate not a debt due to the cost applicant - HELD - judgment arising from filing of s 369 certificate not for a debt due to the cost applicant - judgment set aside - orders in lieu made to give effect to the import of the statutory costs judgment arising on filing of the s 369 certificate
RESTITUTION - right to reimbursement where moneys paid under compulsion discharging liability of another - whether right arose where cost applicant paid costs of cost assessor in order to obtain cost certificates from Manager, Costs Assessment - where cost respondent liable to pay costs as assessed under the s 369 certificate - OBITER - cost applicant in those circumstances would have right to reimbursement from cost respondent
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Act 2004 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Anderson Formrite Pty Ltd v CASC Hire Pty Ltd [2005] FCA 1424
Anlaby v Praetorius (1888) 20 QBD 764
Australian Securities Commission v Marlborough Gold mines Ltd [1993] HCA 15; (1993) 177 CLR 485
Bhattacharya v Berger [1999] FCA 883
Bhattacharya v Berger [1999] FCA 1302
Brook's Wharf & Bull's Wharf Ltd v Goodman Bros [1937] 1 KB 534
Croker v FCT (2003) 52 ATR 226
Croker v Commissioner of Taxation [2005] FCA 127
Dennis v Miller and Ors [2012] FMCA 25
Doyle v Hall Chadwick [2007] NSWCA 159
Edmunds v Wallingford (1885) 14 QBD 811
Exall v Partridge (1799) 8 TR 308
Frumar v Owners of Strata Plan 36957 [2010] NSWCA 172
Holtby v Hodgson [1890] 24 QBD 103
Infact Consulting Pty Ltd v Kyle House Pty Ltd [2007] NSWSC 56
Moule v Garrett (1872) LR 7 Ex 101
Pearl Bay Corp Pty Ltd v Lodur Pty Ltd [2000] WASC 315
Rankine v Lord [2011] FCA 478
The Esso Bernicia [1989] AC 643
Texts Cited: Goff and Jones, The Law of Restitution (5th ed, 1998)
Ritchie's Uniform Civil Procedure NSW
Category: Interlocutory applications
Parties: Ozem Azzam Kassem and Bruno Secatore as Joint Liquidators of Pan Pacific Age Care Services Pty Ltd (in liq) ACN 112 742 882 (First Plaintiff/First Respondent)
Pan Pacific Age Care Services Pty Ltd (in liq) ACN 112 742 882 (Second Plaintiff/Second Respondent)
Kanella Koutavas (Defendant/Applicant)
Representation: Counsel
M Condon…

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 Kassem v Koutavas

Details

AGLC: Kassem v Koutavas [2012] NSWSC 236
Case: [2012] NSWSC 236
Decision Date: 16 March 2012

CaseChat Overview and Summary

The case of Kassem v Koutavas before the Supreme Court of New South Wales involved a dispute over the assessment of costs and the enforcement of cost certificates under the Legal Profession Act 2004 (NSW). The applicant sought to enforce two cost certificates issued pursuant to sections 368 and 369 of the Act. These certificates were lodged together and, in accordance with sections 386(5) and 369(7) of the Act, were entered as a single judgment in favour of the cost applicant. The respondent contested the entry of the judgment, arguing that it was irregular because the money payable under the section 369 certificate was not a debt due to the cost applicant.

The court had to determine whether the judgment was correctly entered and if the money payable under the section 369 certificate constituted a debt due to the cost applicant. The court held that the judgment was entered irregularly because the money payable under the section 369 certificate was not a debt due to the cost applicant. Consequently, the court set aside the original judgment and made orders in lieu to give effect to the statutory costs judgment arising from the filing of the section 369 certificate. The court also considered the issue of restitution, holding that the cost applicant would have a right to reimbursement from the cost respondent if the respondent was liable to pay the costs as assessed under the section 369 certificate.

In conclusion, the court set aside the original judgment and made new orders to correctly reflect the statutory costs judgment. The court further opined that the cost applicant would have a right to reimbursement from the cost respondent under certain circumstances. The final orders included setting aside the original judgment and making new orders to reflect the statutory costs judgment, along with the potential for reimbursement from the cost respondent.

Orders