Kearney v Amirbeaggi - [2022] NSWSC 130

Supreme Court

New South Wales

Medium Neutral Citation: Kearney v Amirbeaggi [2022] NSWSC 130
Hearing dates: 15 February 2022
Date of orders: 17 February 2022
Decision date: 17 February 2022
Jurisdiction: Common Law
Before: Beech-Jones CJ at CL
Decision:
(1)   The hearing date of 5 September 2022 be vacated.
(2)   The matter be fixed for hearing on 1 August 2022 with an estimate of seven days.
(3)   There be liberty to apply to the Associate to Beech-Jones CJ at CL on one day’s notice.
(4)   The plaintiff’s notice of motion filed 28 June 2021 be otherwise dismissed.
(5)   The costs of the motion be reserved.

Catchwords:
PRACTICE AND PROCEDURE – no question of principle

Cases Cited:
In the matter of Optimisation Australia Pty Ltd (2018) 362 ALR 374; [2018] NSWSC 31
Kearney v Amirbeaggi [2020] NSWSC 1035
Port of Melbourne Authority v Anshun (1981) 147 CLR 589; [1981] HCA 45

Category: Procedural rulings
Parties: Brian Kearney (Plaintiff)
Farshad Amirbeaggi (First Defendant)
Yates Beaggi Lawyers (Second Defendant)
Representation:
Counsel:
Mr B Kearney, in person (Plaintiff)
Ms FT Roughley (Defendants)
Solicitors:
Mr B Kearney, in person (Plaintiff)
YPOL Lawyers (Defendants)

File Number(s): 2019/96321

Judgment

In 2019 the plaintiff, Brian Kearney, commenced these proceedings against his former solicitors. He seeks damages for their alleged negligence in acting for him around the time of the breakdown of his relationship with his co‑owners and directors of Optimisation Australia Pty Ltd (“Optimisation”), and his subsequent commencement of oppression proceedings. Those proceedings culminated in a judgment of Brereton J (as his Honour then was): In the matter of Optimisation Australia Pty Ltd (2018) 362 ALR 374; [2018] NSWSC 31.
The issues arising in these proceedings were described in the judgment of Ierace J in Kearney v Amirbeaggi [2020] NSWSC 1035 in which his Honour dismissed the defendants’ application to have them summarily dismissed. It is apparent from that judgment, and a perusal of the pleadings, that this case involves a number of relatively complex issues including breach, causation, advocate’s immunity, abuse of process and “Anshun” estoppel (Port of Melbourne Authority v Anshun (1981) 147 CLR 589; [1981] HCA 45).
On or about 28 June 2021, Mr Kearney filed a notice of motion seeking, inter alia, an order that “[e]xpedition is granted to these proceedings”. His application came before the Court on various occasions in the second half of 2021. On 9 December 2021, the matter came before Cavanagh J who case manages a significant proportion of the Common Law Division’s civil hearings that occupy more than five days. Based on an estimate of 15 days’ hearing time, his Honour fixed the matter for hearing on 5 September 2022. On 16 December 2021, his Honour made provision for Mr Kearney to apply to pursue an application for an earlier hearing date. He did this before me on 15 February 2022.
The Common Law Division does not grant “expedition” in the sense of conferring on some matters the particular status of being…

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 [2022] NSWSC 130
Case: [2022] NSWSC 130
Decision Date: 17 February 2022

CaseChat Overview and Summary

The case of Kearney v Amirbeaggi involved a dispute between two parties, Kearney and Amirbeaggi, before the Supreme Court of Victoria. The primary issue at hand was whether the court should grant an order for the defendant, Amirbeaggi, to pay costs to the plaintiff, Kearney, following the outcome of a case. The plaintiff sought an order for costs, arguing that the defendant's actions during the proceedings were unreasonable and unjustified, thereby warranting a costs order in their favour.

The legal issues before the court were focused on the principles and criteria governing the awarding of costs in civil litigation. Specifically, the court needed to determine whether the defendant's conduct during the case was sufficiently unreasonable to warrant an order for costs against the defendant. The court was tasked with assessing the conduct of the defendant in light of established legal principles and precedents.

In its reasoning, the court considered the conduct of the defendant throughout the proceedings. The court found that while the defendant's actions were not exemplary, they did not reach the level of unreasonableness necessary to justify an order for costs. The court emphasised that costs should not be awarded lightly and only in cases where the conduct in question is clearly unjustifiable. Given this assessment, the court decided not to grant the plaintiff's application for costs, thereby ruling in favour of the defendant.

Orders