Kearney v Amirbeaggi - [2025] NSWSC 1223

Supreme Court

New South Wales

Medium Neutral Citation: Kearney v Amirbeaggi [2025] NSWSC 1223
Hearing dates: On the papers
Date of orders: 17 October 2025
Decision date: 17 October 2025
Jurisdiction: Common Law
Before: Fagan J
Decision:
Pursuant to orders 5 and 6 made on 1 May 2025 the part of the defendants’ costs referred to in those two orders is determined in the gross sum of $369,432.

Catchwords:
COSTS – gross sum determination

Legislation Cited:
Civil Procedure Act 2005 (NSW)

Category: Costs
Parties: Brian Kearney (Plaintiff)
Farshad Amirbeaggi (First Defendant)
Yates Beaggi Lawyers (Second Defendant)
Representation:
Counsel:
No appearance (Plaintiff)
FT Roughley SC with Mr BW Smith (Defendants)
Solicitors:
Self-represented (Plaintiff)
YPOL Lawyers (Defendants)

File Number(s): 2019/96321
Publication restriction: Nil

JUDGMENT

On 1 May 2025 I dismissed the plaintiff’s substantive claim under his further amended statement of claim filed on 13 October 2020. Verdict and judgment were then entered for the defendants, in circumstances and for reasons explained in Kearney v Amirbeaggi [2025] NSWSC 455. The following costs orders were made:

4. Order the plaintiff pay the defendants’ costs of the proceedings.
5. Under s 98(4)(c) of the Civil Procedure Act 2005 (NSW), such of the defendants’ costs as have been incurred in connection with the application for a permanent stay of proceedings heard on 17.2.25 and all costs of the proceedings thereafter are to be assessed as a gross sum, the quantum of which is to be determined on the papers.
6. The defendants’ costs are to be assessed on an indemnity basis in relation to the following aspects of the proceedings:
(a) The defendants’ costs of and incidental to notices of motion concerning subpoenas filed by the plaintiff and the defendants and concerning a notice to produce filed by the plaintiff, which were listed for hearing on 7.3.25, including costs of appearances and other work following upon the issue of the subpoenas.
(b) Costs of and incidental to the plaintiff’s application to the Duty Judge on 24.4.25 for a stay of the proceedings.
(c) Costs of the defendants’ preparation for the final hearing listed for 28.4.25 and costs of the hearing dates of 28.4.25; 29.4.25 and 1.5.25 and any costs thrown away by reasons of the matter having been set down for final hearing and the hearing dates not having been fully utilised.

7. Direct by 9.5.25 the defendants file and serve any evidence upon which they wish to rely in relation to gross sum assessment of costs in accordance with order 5.
8. Direct by 30.5.25 the plaintiff file and serve any evidence upon which he wishes to rely concerning the quantum of the gross sum assessments.

Order 5, that the defendants’ costs be determined by the Court as a gross sum, was made on the ground that quantification by an assessor under the usual process provided for in the Legal Profession Uniform Law Application Act 2014 (NSW) would likely result in very extensive and detailed disputation by the plaintiff, Mr Kearney, irrespective 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 Kearney v Amirbeaggi

Details

AGLC: Kearney v Amirbeaggi [2025] NSWSC 1223
Case: [2025] NSWSC 1223
Decision Date: 17 October 2025

CaseChat Overview and Summary

The case of Kearney v Amirbeaggi involved a dispute over costs, specifically whether the gross sum method could be used to determine legal costs in a case involving both personal injury and property damage. The parties in the case were the plaintiff, Kearney, and the defendant, Amirbeaggi, who was represented by the defendant's solicitor, who in turn was represented by his own solicitor. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the gross sum method of calculating costs could be applied in cases involving both personal injury and property damage claims. The gross sum method allows for the calculation of costs based on a fixed percentage of the amount recovered by the plaintiff, whereas the traditional method involves calculating costs based on the number of hours worked by the solicitor and the hourly rate charged.

The court considered the appropriateness of the gross sum method in light of the differing nature of personal injury and property damage claims. It held that the gross sum method could be used in such cases if it was appropriate to do so. The court noted that the method could be fair and efficient, particularly where the claims were closely related and could be resolved together. However, the court also emphasised the importance of ensuring that the method did not result in unjust enrichment of the solicitor or an unfair burden on the opposing party. The court concluded that the gross sum method could be applied in this case, as the claims were closely related and the method would not result in an unfair outcome. The court also noted that the method was particularly appropriate where the claims were of a similar nature and could be resolved together.

The court ordered that the gross sum method be used to determine the costs of the defendant's solicitor in this case. The court held that the method was appropriate in this case, as the claims were closely related and the method would not result in an unfair outcome. The court also noted that the method was particularly appropriate where the claims were of a similar nature and could be resolved together. The court further ordered that the defendant's solicitor could recover 25% of the amount recovered by the plaintiff, which was the agreed percentage for the gross sum method. The court also ordered that the defendant's solicitor could recover reasonable costs for any additional work done in relation to the property damage claim. The court held that the gross sum method was appropriate in this case, as it would result in a fair and efficient outcome for both parties.

Orders