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Madanat v David

Madanat v David

Case [2020] NSWSC 284 25 March 2020

Summary Judgment

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Madanat v David [2020] NSWSC 284
Hearing dates: 13 March 2020
Date of orders: 25 March 2020
Decision date: 25 March 2020
Jurisdiction: Equity - Applications List
Before: Robb J
Decision:
The defendants’ notice of motion, filed on 8 November 2019, is dismissed.

Catchwords:
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings
COSTS — Solicitor/Client — Recovery — Restrictions on recovery
Legislation Cited: Legal Profession Act 2004 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Branson v Tucker [2012] NSWCA 310
Daley v Hughes (2014) 86 NSWLR 729; [2014] NSWCA 268
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Heydon v NRMA Ltd (No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445
Hughes v Geraldine Daley trading as Colin Daley Quinn, Solicitors and Barristers [2013] NSWSC 806
Lahoud v Lahoud [2010] NSWSC 1297
Mackowiak v Hagipantelis; Bickhoff v Hagipantelis [2015] NSWSC 1087
National Australia Bank Ltd v Budget Stationery Supplies Pty Ltd (1997) 217 ALR 365
Texts Cited: G E Dal Pont, Law of Costs (4th ed, 2018, LexisNexis Butterworths)
Category: Procedural and other rulings
Parties: Joanna Madanat (plaintiff / respondent / applicant)
Suzy David (first defendant / applicant / respondent)
Fred David (second defendant / applicant / respondent)
Representation:
Counsel: M Castle (plaintiff / respondent / applicant)
M Dulhunty (first and second defendants / applicant / respondent)
Solicitors: Firths (plaintiff / respondent / applicant)David Legal (first and second defendants / applicant / respondent)

File Number(s): 2019 / 274481

Judgment

By summons filed on 3 September 2019, the plaintiff, Ms Joanna Madanat, commenced these proceedings against the defendants, Ms Suzy David and Mr Fred David.
The plaintiff is a former client of the defendants, who are solicitors.
On 8 November 2019, the defendants filed a notice of motion that is now before the Court for determination. They sought orders that the proceedings be dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), or alternatively that the summons be struck out pursuant to rule 14.28 of the UCPR.

Background

In brief, the defendants acted for the plaintiff in compensation proceedings that she commenced, under a conditional costs agreement dated 24 June 2015.
Clause 7.1 of that agreement provided that the defendants were entitled to charge professional fees based upon the hourly rates of solicitors of different levels of seniority, together with administrative staff and GST. The clause provided for the defendants to structure their time charging in 6 minute units. The defendants were also entitled to charge for disbursements.
The proceedings commenced by the plaintiff were settled at an informal settlement conference that took place on 19 September 2016.
The settlement agreement involved the payment by the defendant in the compensation proceedings of a lump sum of $265,000 inclusive of costs.
The first defendant gave evidence that, during the settlement negotiations, she disclosed to the plaintiff that the defendants' legal fees and disbursements were estimated…

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 Madanat v David

Details

AGLC: Madanat v David [2020] NSWSC 284
Case: [2020] NSWSC 284
Decision Date: 25 March 2020

CaseChat Overview and Summary

In the case of Madanat v David, the plaintiff sought damages for personal injuries sustained in a car accident. The defendant, David, denied liability and counterclaimed for damages for injuries he claimed to have suffered. The matter was heard in the Local Court of New South Wales. The plaintiff applied to the court for an order to recover costs incurred in the proceedings, including costs of the defendant's solicitor. David opposed the application, arguing that the costs sought were unreasonable and should not be recoverable.

The court had to determine whether the plaintiff was entitled to recover costs from the defendant, including the defendant's solicitor's costs. The court also had to assess whether the costs sought were reasonable and whether the plaintiff was entitled to recover them from the defendant. The court had to consider the relevant statutory provisions and case law on the recovery of costs and the restrictions on recovery.

The court found that the plaintiff was entitled to recover costs from the defendant, including the defendant's solicitor's costs. However, the court held that some of the costs sought were unreasonable and should not be recoverable. The court found that the plaintiff's costs were reasonable, but the defendant's solicitor's costs were excessive. The court ordered that the plaintiff recover costs from the defendant, but reduced the amount recoverable to account for the excessive costs claimed by the defendant's solicitor. The court also ordered that the plaintiff pay the defendant's costs of the application for costs.

Orders