Khoury v Hiar

Case [2006] NSWCA 47

New South Wales


Court of Appeal


CITATION: Khoury & Anor v Hiar & Anor [2006] NSWCA 47
HEARING DATE(S): 23 February 2006
 
JUDGMENT DATE: 
15 March 2006
JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Bryson JA at 60
DECISION: (1) Mr Hiar be restrained from enforcing the judgment entered in the District Court on 24 February 2005 save to the extent of $7,343; (2) The summons be otherwise dismissed; (3) Mr Hiar pay two-thirds of the claimants' costs in this Court.
CATCHWORDS: Costs - order against legally assisted person - whether liability for the costs - whether exception in s 47 of Legal Aid Commission Act applied to bring liability in part for the costs - costs assessed and assessor's certificate filed - judgment for amount of certificate - whether judgment itself brought liability for the costs - discussion of relief which could be granted.
LEGISLATION CITED: Civil Procedure Act 2005;
District Court Act 1973;
Legal Aid Commission Act 1979;
Legal Profession Act 1987;
Legal Profession Act 2004;
Local Courts Act 1982;
Property (Relationships) Act 1984;
Supreme Court Act 1970.
CASES CITED: Board of Fire Commissioners v Ardouin (1961) 109 CLR 105;
Coco v The Queen (1994) 179 CLR 427;
re McBain; ex parte Catholic Bishops Conference (2002) 209 CLR 372;
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591;
Wentworth v Rogers [2005] NSWSC 1431.
PARTIES: Barbara Khoury - 1st Claimant
Legal Aid Commission of New South Wales - 2nd Claimant
Fadi Hiar - 1st Opponent
District Court of New South Wales - 2nd Opponent
FILE NUMBER(S): CA 40649/05
COUNSEL: N Perram & A D Crossland - Claimants
A P Stenmark SC & P King - 1st Opponent
SOLICITORS: Steve O'Connor - 1st and 2nd Claimants
Kings Lawyers - 1st Opponent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 1047/03
LOWER COURT JUDICIAL OFFICER: Walmsley DCJ - 10 June 2004



                          CA 40649/05
                          DC 1047/03

                          BEAZLEY JA
                          GILES JA
                          BRYSON JA

                          15 March 2006
KHOURY & ANOR v HIAR & ANOR
Judgment

1 BEAZLEY JA: I agree with Giles JA.

2 GILES JA: The substantive question is the extent to which costs ordered against Ms Khoury, a legally assisted person, can be recovered from her by Mr Hiar. It is accompanied by a number of questions going to the availability of relief.


      Facts

3 On 30 August 2002 Mr Hiar brought proceedings against Ms Khoury claiming relief under the Property (Relationships) Act 1984. Ms Khoury’s solicitors applied to the Legal Aid Commission (“the Commission”) for legal aid under the Legal Aid Commission Act 1979 (“the Act”), and on 13 September 2002 legal aid was granted from 30 August 2002.

4 The proceedings were heard in the District Court over a number of days in the period January-June 2004. Walmsley DCJ delivered judgment on 10 June 2004, holding in favour of Mr Hiar, and invited submissions on the orders which should be made…

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Khoury v Hiar [2006] NSWCA 47
Case
[2006] NSWCA 47
Decision Date

CaseChat Overview and Summary

The parties to this appeal were Mr Khoury and Mr Hiar. The dispute concerned an order for costs made against Mr Khoury in the District Court, which Mr Khoury sought to have set aside or varied. The appeal was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether Mr Khoury, a legally assisted person, was liable for the costs awarded against him, and if so, to what extent. Specifically, the court considered whether the exception provided in section 47 of the Legal Aid Commission Act 1979 (NSW) applied to limit Mr Khoury's liability for these costs. The court also examined whether the entry of judgment for the assessed costs in the District Court automatically created a liability for those costs, irrespective of the provisions of the Legal Aid Commission Act.

The Court of Appeal reasoned that section 47 of the Legal Aid Commission Act was intended to protect legally assisted persons from liability for costs, save in specific circumstances not applicable here. The court found that the judgment entered in the District Court for the assessed costs did not override the protections afforded by the Act. Consequently, Mr Hiar was restrained from enforcing the full amount of the judgment.

The Court of Appeal ordered that Mr Hiar be restrained from enforcing the District Court judgment save to the extent of $7,343. The summons was otherwise dismissed, and Mr Hiar was ordered to pay two-thirds of the claimants' costs in the Court of Appeal.

Orders

Orders of the court

(1) Mr Hiar be restrained from enforcing the judgment entered in the District Court on 24 February 2005 save to the extent of $7,343; (2) The summons be otherwise dismissed; (3) Mr Hiar pay two-thirds of the claimants' costs in this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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