Malouf v Jazairy

[2006] NSWSC 468

CITATION:	Malouf v Jazairy [2006] NSWSC 468
HEARING DATE(S):	12 May 2006
JUDGMENT DATE :	25 May 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Associate Justice Harrison
DECISION:	(1) The decision is remitted to the Costs Review Panel to redetermine applications 92001/2001 and 92004/2001; (2) Each party is to pay its/their own costs.
CATCHWORDS:	Further appeal of Costs Review Panel's decision
LEGISLATION CITED:	Legal Profession Act 1987 - 208D Legal Profession Act 2004 - s 384(2) Supreme Court Act 1970 - s69
CASES CITED:	Haifa Jazairy v Gerard Francis Malouf t/as Gerard Malouf & Partners [2005] NSWSC 808
PARTIES:	Gerard Francis Malouf t/as Gerard Malouf & Partners v Haifa Jazairy
FILE NUMBER(S):	SC 11357/2006
COUNSEL:	Ms Cochrane (Plaintiff) Mr Horsley (Defendant)
SOLICITORS:	Gerard Malouf & Partners (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

WEDNESDAY, 31 MAY 2006

11357/2006 - gerard francis malouf t/as
gerard malouf & PARTNERS v
HAIFA JAZAIRY
JUDGMENT (Further appeal of Costs Review Panel’s decision)

1 HER HONOUR: By summons filed 23 March 2006 the plaintiff seeks firstly, an order setting aside the amended statement of reasons and amended certificate of determination of costs of the Costs Review Panel dated 28 February 2006 in matter 92001/2001 (the first decision); secondly, an order setting aside the amended statement of reasons and amended certificate of determination of costs of the Costs Review Panel dated 28 February 2006 in matter 92004/2001 (the second decision); thirdly, in the alternative, a declaration that the first and second decisions are void and of no effect; and fourthly, in the alternative an order that the first and second decision be quashed. The plaintiff is Gerard Francis Malouf t/as Gerard Malouf & Partners. The defendant is Haifa Jazairy. For convenience, I shall refer to Gerard Malouf as the solicitor and Haifa Jazairy as the client, in this judgment.

2 This litigation has had an unfortunate history. There has been a determination of a Costs Assessor, a determination by the Costs Review Panel, an appeal to this court and a redetermination of the Costs Review Panel, an appeal from the redetermination of the Costs Review Panel, a further redetermination by the Costs Review Panel and a further appeal.

Orders sought

3 The parties agree that orders (1) and (2) of the summons should be made. Those orders are firstly, an order setting aside the amended statement of reasons and amended certificate of determination of costs of the Costs Review Panel dated 28 February 2006 in matter No 92001/2001; and secondly, an order setting aside the amended statement of reasons and amended certificate of determination of costs of the Costs Review Panel dated 28 February 2006 in matter No 92004/2001.

4 The summons (the solicitor) seeks a third order which is that the issuing of certificate consequent upon the first and second decisions was beyond jurisdiction and/or ultra vires the Legal Profession Act 1987 (LPA).

5 The client seeks a different order namely that the Costs Review Panel (a) say whether in their determinations of 21 April 2004, in costs assessment 92001/2001 and 92004/2001, they made any determination as to whether the costs agreement between the appellant and the respondent was unjust; (b) if they made such a determination say whether they determined it was unjust or not unjust, and state the reasons for that determination; (c) if they made no such determination now determine whether or not the costs agreement was unjust, give reasons for that determination and redetermine the costs assessments 92001/2001 and 92004/2001 in accordance with that determination. According to the client, the source of power for this order lies in s 69 of the Supreme Court Act 1970.

Judgment dated 15 August 2005

6 On 15 August 2005 I delivered judgment in proceedings 12455/2004 Haifa Jazairy v Gerard Francis Malouf t/as Gerard Malouf & Partners [2005] NSWSC 808. The appeals were upheld and the application for redetermination was remitted to the Costs Review Panel for the purpose of it providing reasons for its determination of 21 April 2004 that the costs agreement is not unjust.

Latest redetermination of Costs Review Panel

7 The parties submitted that Master Malpass, in [2003] NSWSC 762, did not make a specific finding that the agreement was not unjust, and the client submitted that the Costs Review Panel did not on its second redetermination make a determination that the agreement was not unjust. This submission is correct. That being so, by my referral of the matter back to the Review Panel for reasons for its determination that the costs agreement was not unjust was wrong. It was an error on my part.

8 The last time the matter was remitted to the Review Panel, the Review Panel did not give reasons as to why the costs agreement was not unjust. Rather they set about their task and determined that certain terms of the agreement dated 19 August 1996 were unjust pursuant to clause 208D of the LPA (see reasons para (xv)).

9 At paragraph (xiii) the Review Panel stated that:

“Associate Justice Harrison on 15 August 2005 (2005 NSWSC 808) determined that if a Review Panel changes its mind as to whether a term or terms of a Costs Agreement is unjust the Review Panel must given reasons for doing so. Associate Justice Harrison set aside the Review Panel’s decision of 21 April 2005 and remitted the Application to the Review Panel for determination.”

10 The Review Panel did not carry out the function they were directed to by my decision, namely to provide reasons, but it appears that it did carry out a reconsideration. At that time reconsideration was carried out it was ultra vires.

11 I have to decide whether I should now affirm the Review Panel’s decision and thus validate an invalid act or send the application back again for a further reconsideration so that its determination is not ultra vires. There are two objectives to do justice between the parties and to give finality to the dispute. Under s 384(2) of the Legal Profession Act 2004 this court may either “(a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or (b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application.”

12 I have decided to order the Costs Review Panel to redetermine the applications so there can be no doubt that a proper redetermination has been carried out.

13 Costs are discretionary. The appropriate order is that each party is to pay its/their own costs.

14

The court orders:

(1) The decision is remitted to the Costs Review Panel to redetermine applications 92001/2001 and 92004/2001.

(2) Each party is to pay its/their own costs.

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